In support of Eugene's post below, I recount the following story. I was a student at Yale Law School when the flagburning issue was at its apex during the Bush I-Dukakis campaign. The Yale Federalist Society had an dinner, at which the issue was discussed. At the end of the discussion, I asked for a show of hands as to who thought that flagburning was protected by the First Amendment. Every person in the room (about fifteen, as I recall), including some decidedly nonlibertarian types (including as least two who now hold high positions with GWB), raised his hand. So I doubt that flagburning-as-free-speech really separates conservatives from liberals, but rather elite lawyers from popular opinion.

Flagburning and liberals:
Clayton Cramer also writes (in a post aimed at supposedly "pointing out the absurdity of the liberal position"), that "Liberals do believe that" "burning an American flag is a form of free speech." True, many liberals do (probably more than conservatives do).

So did Justice Scalia and Justice Kennedy, who provided two of the five votes needed to strike down the flagburning ban. On the other hand, one of the four votes to uphold the ban was Justice Stevens, who is now one of the most liberal Justices on the Court (and at the time was mostly a member of the liberal wing, alongside Justices Brennan, Marshall, and Blackmun, who were in the majority on the flagburning case).

Now maybe liberal Justice Stevens was right, and conservative Justices Scalia and Thomas were wrong on this. But it seems helpful to recognize that the flagburning-as-speech position and even the flagburning-as-protected-speech position is not just a province of those darned liberals.

For my explanation of why this position is actually correct, and why Cramer's parade of horribles is unsound, see the post below. But my point in this post is that flagburning, at least as a constitutional matter, is hardly a crisp liberal-conservative question.

[I]f burning an American flag is protected freedom of expression, perhaps spreading manure [as a political protest] is too.

He was of course using it to suggest that flagburning shouldn't be protected, not that manure spreading should be.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. (It may not be oral speech, but unless one thinks that the government should have a broad right to suppress handwritten letters, because they are neither oral speech nor "press," one has to read speech more broadly than just oral speech.) Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag. A law that bans the burning of all objects in certain public places — perhaps on the grounds that they are fire hazards — would be constitutional. [*] Likewise with a law that bans the placement of manure in the middle of a street.

So there's really not much tension here between the protection given flagburning and the lack of protection given manure spreading. An evenhanded ban on burning things in a place and an evenhanded ban on spreading manure there would be constitutional. Likewise, a ban on burning the American flag and a ban on spreading manure as a protest against gay pride parades would both be unconstitutional.

* * *

[*] NOTE: Under the United States v. O'Brien test, symbolic speech might be entitled to an exemption even from a generally applicable law — a law that doesn't single out expression — when the symbolic speech is highly unlikely to cause the harm that the law drives at.

This, though, is a very narrow doctrine, under which exemption claimants almost never win. And there are plausible arguments that the doctrine should generally be rejected, at least as to behavior that isn't traditionally expressive. Justice Scalia has been the chief advocate of such arguments, but note that even he recognized in the flagburning cases that a law that punishes expressive conduct precisely because it's expressive presumptively violates the First Amendment.

Police on Friday arrested a man accused of spreading manure along the path of a gaypride parade last Sunday in Conway. . . . [The man is charged with harassment,] a Class A misdemeanor, carrying a maximum fine of $1,000 and up to a year in jail.

The Conway police, fire and street departments were compiling a list of cleanup costs and will ask City Attorney Mike Murphy to pursue restitution . . . .

On Sunday morning, parade organizers John Schenck and Robert Loyd said they found manure spread outside their house at 1605 Robinson Ave. and along the parade route. City workers cleaned the street before the parade began.

Police said a dump-truck load of manure was spread on the street about 6:30 a.m. . . . [Schenck] said the episode showed why Arkansas needed a "hate-crimes" law.

The FBI defines a hate crime as "a criminal offense committed against a person or property which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, ethnicity/national origin."

How does it show that? Manure Boy is rightly being charged with a crime — spreading manure on a public street is antisocial behavior that harms those nearby, whether paraders or not; you shouldn't be allowed to do that, as political commentary or otherwise. It's properly not a very serious crime, since spreading manure isn't that harmful; a fine and a suspended sentence is likely the right penalty.

But in any event, should the law really treat differently manure spreading aimed at a gay pride parade at a St. Patrick Day's Parade (since hate crimes laws would cover crimes motivated by the target's race and ethnicity), but not manure spreading aimed at a Veterans of Foreign Wars parade or an anti-gay parade? (I assume that the spreader here was motivated by the gay pride paraders' sexual orientation, and not just their views, but the spreader at the hypothetical anti-gay parade would likely be motivated by the anti-gay paraders' political views, not their sexual orientation.)

I generally think that hate crimes laws are not unconstitutional (the Court got this right in Wisconsin v. Mitchell (1993)), though I think that they're on balance a bad idea. But applying such laws to vandalism aimed at gay-affiliated political speech but not other political speech might indeed be unconstitutional; and even if it's not unconstitutional, it is at least especially troubling.

Before the anti-homosexuality people start seizing on this as further evidence of those dominant gays trying to oppress the rest of us, let me mention that hate crimes laws were originally most seriously pushed by groups that see themselves as defending Jews and ethnic minorities. I think those laws are just as unjustified when applied to race, ethnicity, religion, or disability as they are when applied to sexual orientation. But here it looks like gay activists are just trying to get in on the same action that other groups have gotten in the past.

I'm aware that there are plausible arguments that crimes motivated by these factors are especially harmful or especially blameworthy — but I think that on balance those laws do more harm than good (see here for a brief summary of my views). And this incident is a good example of why the law should focus on the misconduct, not the anti-gay motivation behind the misconduct.

UPDATE: My original post erroneously referred to Schenck as the person who is charged with spreading the manure -- my mistake; as the excerpt makes clear, he was the parade organizer and thus in a sense the victim, not the criminal. Very sorry; just typed the wrong name.

"Sedition" is more than just a cool song from Fiddler on the Roof ("Sedition, sedition! Sedition! Who, day and night, must counsel revolution, Stir up mobs of people, urge them to revolt? . . ."). It's also the name of a crime, and a reader asks me: Given how narrow treason is, what's up with sedition?

"Sedition" has many possible meanings, but I think the reader (and some others) have used it to refer to advocacy of revolution against the government, or advocacy of illegal conduct more generally, or even attempts to arouse hostility against the government. The most famous Sedition Act in U.S. history, the Sedition Act of 1798, was limited to seditious falsehoods (though in practice was used against seditious opinions, too), and said that:

[It shall be illegal -- on pain of up to a $2000 fine and 2 years in prison -- to write or publish] any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to

defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;

or to excite against them, or either or any of them, the hatred of the good people of the United States,

or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act,

or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government. . . .

[The Act was to remain in force until March 3, 1801, the last day of the Presidential term in which it was enacted. Bullets added. -EV]

Take away the requirement of falsehood, and set aside the hostile designs of any foreign nation, you have a working definition of "sedition."

Actually committing physical crimes, or conspiring to commit such crimes (i.e., agreeing with specific people to commit those crimes), is still illegal. But mere advocacy of crime is generally constitutionally protected (see Brandenburg v. Ohio (1969)), unless the speech is (1) intended and (2) likely to incite (3) imminent illegal conduct. The classic example is giving a speech to an angry mob, urging them (explicitly or implicitly) to attack someone or destroy some property. Public advocacy of violent conduct at some unspecified future time, on the other hand, is not treated as advocacy of imminent conduct, and is thus constitutionally protected. And imminence seems to be read quite narrowly, as referring to conduct in a few hours or a few days at most.

Now some other kinds of related speech can be restricted under other doctrines. Threatening a particular person, for instance, is unprotected under the threat exception. Soliciting a specific crime against a specific person, especially when done privately ("Please kill my wife"), is also unprotected, though the Supreme Court has never explicitly defined the distinction between this and incitement of nonimminent conduct.

But simply advocating the propriety of illegal conduct, whether it's an illegal sit-in, illegal violence, or revolution, is constitutionally protected (again, unless it's intended to or likely to cause imminent illegal conduct, which is quite unlikely). About a decade ago, for instance, a Florida sheriff urged that Ice-T (who now plays a policeman on television) be charged with sedition because of his Cop Killer song; but that would clearly be foreclosed, even if there was evidence that Ice-T was seriously urging killing of police officers (since he wasn't intending to urge imminent killing). See Lee Sheriff Wants Sedition Charge Over "Cop Killer," Orlando Sentinel Tribune, July 7, 1992, at D6.

Is the right rule? I think it probably is. While it's tempting to say that in a democracy, people who think a law is wrong should urge that it be changed, not urge that it be violated, laws that ban advocacy of illegal conduct quickly end up punishing a lot of speech that's quite valuable. Bans limited to explicit advocacy can be easily skirted; the message "break the law" can easily be conveyed without using those words. So the government will usually, for understandable reasons, try to "close this loophole" by going after implicit advocacy as well.

But much strong condemnation of a law (e.g., "Abortionists are murderers, and the law that allows abortion and protects abortionists from righteous defenders of the unborn is wrong and contemptible") can be credibly argued to be implicit advocacy of violation. The World War I-era cases (such as U.S. v. Schenck and U.S. v. Debs) might be examples of this phenomenon.

So anyone who wants to condemn an existing law will be at the mercy of prosecutors, judges, and juries -- if they conclude that deep down inside he was really intending to advocate breaking the law, and not just condemning the law and advocating that it be changed, then he'll go to prison. And as a result many people might well be deterred from even expressing strong disagreement with a law, for fear that it will be interpreted as implicit advocacy of breaking the law.

But in any case, rightly or wrongly, under the Brandenburg rule nearly all seditious advocacy constitutionally protected.

I'm going to live forever
via Dan Drezner, a Chicago Tribune story on the myriad health benefits of coffee. (registration required).

Though the virtues of coffee drinking may have been debated in the past, now there appear to be new reasons to rejoice over java. More and more studies have linked coffee consumption to a number of health benefits, including a reduced risk of diabetes, Parkinson's disease, gallstones, colon cancer and potentially heart disease.
"Coffee has much more in it than caffeine," said Dr. PeMartin, director of the Vanderbilt University's Institute for Coffee Studies, which conducts medical research on coffee and is funded by a grant from a consortium of coffee-producing countries. "It's a very complex beverage that contains hundreds of compounds, including many with antioxidant effects."
Though the tea industry has been touting its antioxidants, turns out coffee may contain even more--specifically polyphenols. One of the most potent antioxidants in coffee is called chlorogenic acid, which is partially responsible for the coffee flavor. Some reports estimate that more than 850 compounds are packed inside the humble bean.
Martin said that the roasting process appears to change the structure of the compounds in coffee--boosting the potential disease-fighting benefits. Martin, who is also a professor of psychiatry and pharmacology at Vanderbilt, is looking at the potential use of coffee compounds to treat addiction and depression. Past studies indicate that coffee may help lift moods, reduce anxiety and depression, and even reduce the risk of suicide.
Diabetes risk reduction
Some of the strongest and latest research may be the connection between coffee drinking and a reduced risk of type 2 diabetes, a growing health epidemic that is closely linked to the rising rates of obesity.
In Finland, where coffee consumption is higher than anywhere else in the world, researchers found that coffee appeared to have a protective effect against the development of type 2 diabetes. The more cups of coffee consumed, the greater the protection.
Published in the March 10 issue of the Journal of the American Medical Association, the study examined the coffee-drinking habits of 6,974 Finnish men and 7,655 women. After a 12-year follow-up, women drinking three to four cups of coffee a day experienced a 29 percent reduced risk of diabetes, while risk dropped by 79 percent for women who drank 10 or more cups a day.
For men in the study, drinking three to four cups of coffee a day was associated with a 27 percent lower risk for diabetes. Those men who drank 10 or more cups lowered their risk by 55 percent.
A second study examining an even larger population in the United States found similar results. After analyzing data on 126,000 people for as long as 18 years, Harvard researchers found that having six or more cups of coffee each day slashed men's risk of type 2 diabetes by 54 per-cent and women's by 30 percent compared to those who avoid coffee. Decaffeinated coffee had a weaker effect. The study was published in the Annals of Internal Medicine.

The article goes on to emphasize that things like frozen strawberry frappucinos are really milkshakes, not coffee, for these purposes. (Does anybody really drink frozen strawberry frappucinos and not understand this?)

Indianapolis native Kerry Edwards is feeling pretty good today about his decision to immortalize his name on the Web six years ago.

On Tuesday morning, shortly after Sen. John Kerry (D-Mass.) announced that Sen. John Edwards (D-N.C.) would be his 2004 running mate, the 34-year-old bail bondsman and owner of www.kerryedwards.com said he took down the picture of his child that graced the Web site and put up a for-sale sign.

It didn't take long for the phone to ring.

"Our campaign did inquire about KerryEdwards.com, but because of the money they were asking for we took a pass," said Kerry spokesman Michael Meehan. He said Edwards wanted a five-figure payment. . . .

I'm pretty sure Kerry Edwards' actions don't violate the Anticybersquatting Consumer Protection Act. I also suspect that they don't violate Kerry's and Edwards' right of publicity, though that's a bit more up in the air, given the vagueness of that right. And when it comes time to the smell test, it seems that the domain name owner's being named Kerry Edwards, and having registered your domain in 1998, would make judges lean in the owner's direction, even though he's now trying to exploit the fact that people would go to the site thinking it's related to the campaign. So pay the man his money, folks.

Tuesday, July 6, 2004

My friend and sometime mentor in matters libertarian Roderick Long responds to my post below about Michael Badnarik's position on terrorism and 9/11.

The following three propositions are distinct:

a) The kind of interventionist foreign policy the U.S. regularly pursues is likelier to provoke terrorist attacks than to deter them.

b) The specific attacks the U.S. suffered on 9/11 were primarily a response to its interventionist foreign policy, and the further interventions with which the U.S. has responded are making future terrorist attacks more rather than less likely.

c) The U.S. would never suffer any attacks if it did not have an interventionist foreign policy. Note that (a) does not imply (b), and (b) does not imply (c). We antiwar libertarians have been defending propositions (a) and (b), but in doing so we are not committed to (c) — and no antiwar libertarian known to me has endorsed (c).

which is fair enough, as a response to the charge I literally made, which was that Badnarik emrabced

"silly Panglossianism about politics that says, 'Any wrong must be traceable to another wrong; if only we never did anything wrong, no one would ever do anything wrong to us.'"

That said, I think the rest of Rod's post illustrates my real point quite nicely.

Compare the following three propositions:

d) The kind of interventionist economic policy the U.S. regularly pursues is likelier to provoke economic crises than to deter them.

e) The Great Depression was primarily the result of the U.S. government's interventionist economic policy during the 1920s, and the further economic interventions with which the U.S. government responded served mainly to lengthen the Depression rather than alleviating it.

f) The U.S. would never suffer any economic crises — i.e., there would be no earthquakes, no floods, no hurricanes, etc. — if it did not have an interventionist economic policy. Most libertarians accept propositions (d) and (e); but of course this does not commit them to the absurdity à la Fourier of (f). Isn't accusing antiwar libertarians of Panglossian silliness a bit like accusing libertarians in general of not believing in earthquakes and floods?

Well, no. It's fallacious to treat the cases as so closely analogous. Indeed, Rod has usefully offered one of the neatest accounts I've seen of the fallacy that leads people to treat strict non-interventionism as a matter of libertarian principle.

Politics is not economics, and international politics is really not economics, and terrorism is really, reallynot economics.

In economics, there are sound theoretical, impersonal reasons for very predictable relationships to hold between actions and reactions, between interventions and effects. Those effects don't much depend on the decisions and agency and ideology of other people. Price controls set below the market price will limit the quantity supplied, whether the producers wish it or not; eventually they will not be able to afford to produce goods at a marginal loss.

Action-reaction relationships like thata re much rarer in international politics. The closest thing to an invisible hand/ equilibrium theory in IR is realist balancing, but the predictive value of realist balancing theory is much, much weaker than the predicitve power of basic supply-and-demand economics. And that's with respect to states. With respect to non-state threats, there's even less by way of an invisible hand theory. Terrorists do tend to be "produced" by corrupt states that are authoritarian but less than wholly totalitarian (though totalitarian states do support terrorist movements abroad, they don't spontaneously produce internal terrorist threats). But they're also "produced" by ideology, and by decision. Moreover, there's no iron law that says that foreign intervention produces corrupt authoritarian regimes-- and no law that the terrorists produced by such regimes will target the states that supported the corrupt regimes. Neither Australia nor Spain nor Turkey nor Morocco is responsible for the perpetuation of the Saudi regime; all have been targeted. Terrorism is other people making actual decisions about how to promote their own ends in the world; and neither their ends nor their choice of immoral means is mechanically produced by the actions of the states they target.

Badnarik says:

It was because of American troops in Saudi Arabia, lethal sanctions on Iraq, and other serious violations of International Law that 3,000 innocent Americans paid the ultimate price on September 11, 2001.

Now it's simply untrue that the Iraqi sanctions prompted 9/11. The sanctions were wrong; that doesn't mean that they were a wrong of any great importance to Bin Laden & co. That's what I mean by Panglossianism-- the thought that there's any particular relationship between the rightness or wrongness of our policies and how other people decide to act on us. (It's also not true that either the presence of U.S. troops nor the sanctions was a violation of international law.) There's no invisible hand that leads the radical Islamists of the world to respond violently to our wrongs rather than our rights, or even more frequently to our wrongs than to our rights. And, as an empirical matter, I don't think any such relationship holds in this case, much less for terrorism in general. People can differ on that empirical judgement without falling into fallacy. But it is a fallacy-- one akin to if not quite identical with Panglossianism-- to hold to the invisible hand explanation that terrorism is caused by the moral faults of the victims' governments, that there's some causal mechanism that links the moral wrongness of one state's actions to the decision by other states or non-state actors to take violent action. And I think that fallacy often drives the empirical judgement that terrorism in this case was brought about by policies that the one had independent grounds for disapproving of.

As Rod alludes to, this has all been hashed out many times, mostly in the months following 9/11. I don't expect to change many minds here. For that matter, I'm not (at this stage, anyway) trying to talk anyone else out of voting for Badnarik. I'm just offering my explanation of why I won't do so. If Badnarik were to come in second with tens of millions of votes, or even third with two million and newfound LP credibility, I'd be delighted. But if he were to become President I wouldn't be.

An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied?

No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that:

On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary.

And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies).

Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war.

It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets.

This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him.

But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.

Glenn Reynolds reports today that some of his readers are concerned that looking at an Instapundit Blogad featuring a nude will get them fired for fear of a sexual harassment lawsuit. He notes the massive censorious effects of sexual harassment law, a topic on which Eugene is the world's leading expert, and on which I wrote about here (based on Chapter 2 of You Can't Say That!). I think my piece may contain the only discussion from an academic book of the famous South Park "Sexual Harassment Panda" episode.

I use Microsoft Word, and I'm generally pretty happy with it. If I'm wrong to be happy, that's fine, but I'm highly unlikely to invest the effort to switch to another word processor.

I would, however, like to be able to get the spell checker to ignore square brackets -- [ and ]. I don't want it to ignore text inside those brackets, only the brackets themselves. As blog readers may have noticed, it's standard legal practice (and I imagine standard in some other disciplines as well) to note changes in quotes using brackets, for instance, "Adher[ing] to [the United States'] enemies." I want the spell checker to treat the first word as simply "Adhering," rather than "Adher" followed by another word "ing."

Is there some way to get Word to do this? I've looked and asked, but couldn't find a good answer. Right now I'm copying the document, changing all [s and ]s in the document to empty strings, spell-checking the copy, and then making the necessary corrections to the original. I wonder, though, whether there's a simple way of avoiding this. (Switching to some supposedly better word processor doesn't qualify as a simple way, though buying a program that can quickly and easily spell-check Word files does qualify.)

If you have any suggestions, please e-mail me at volokh at law.ucla.edu.

A conversation just reminded me of a word I've always liked -- "Idiolect":

The speech of an individual, considered as a linguistic pattern unique among speakers of his or her language or dialect.

Not a good word to use, mind you, simply because of the minor detail that people won't understand what you mean. And if everyone did understand, then it wouldn't be a good word of the day. But it's still a good word to be amused by . . . .

Edwards:
When candidate Bush picked Dick Cheney as his V.P. in 2000, I was impressed, as I thought that Bush chose competence and experience over obvious electoral considerations (I'm sure that one could make the case that Cheney was actually the best pick from a political standpoint, but I didn't think so at the time). I thought Bush learned from the mistake of his father, who picked a pretty-boy lightweight as his own V.P., and lived to regret it.

Enter John Edwards. Like Bush I, Kerry has picked a lightweight for V.P., someone who I have no reason to believe has the experience or depth necessary to lead the nation through its current foreign policy perils if the need should arrive. If Pakistan was suddenly taken over by Islamic militants who seemed about to nuke India, would you really want John Edwards to be President? I can think of many, many, better Democratic choices from this perspective, including Gephardt, Graham, and perhaps even Clinton (Ms.).

I'm bound to receive emails pointing out the Bush Jr. himself had dubious foreign policy credentials, and he was at the top of the ticket. Point taken. And I think if 9/11 had occurred a year or two earlier, this would have been a much bigger problem for Bush, and it probably should have been, anyway. But none of that makes Edwards a good choice for Veep.

UPDATE: Edwards is "Quayle Light." Ouch! And lots of stuff on Edwards The Trial Lawyer at Point of Law. Some of my thoughts on the issue may be found here.

Novak mischaracterizes an exchange I had with Condoleezza Rice on the June 27 edition of "This Week." I did not ask Rice, as Novak states, "Why did the United States pass up chances to kill terrorist Abu Musab Zarqawi in 2002 and 2003?" Instead, I laid out a series of facts on the public record: that Zarqawi had set up a weapons and training camp in northern Iraq; that the United States had evidence Zarqawi had visited the camp; and that the United States had considered but rejected plans to attack the camp in 2002 and 2003. I then asked Rice: "Was it a mistake not to take out that camp when you had a chance?" Either Novak didn't check the transcript or chose to rewrite my question precisely because it didn't fit his thesis.

Novak goes on to question my motives: "Why would [George] Stephanopoulos bring up another network's March broadcast of an obscure story never reported elsewhere? It has been spread by Sen. Hillary Rodham Clinton to imply that President Bush held back the attack to gain support for invading Iraq." Had Novak bothered to call, I could have told him that I've never discussed this issue with Clinton or her staff. Had Novak done his homework he would have known that possible military action against the Zarqawi camp had been reported not just by NBC News but also by ABC, the Los Angeles Times and columnists such as Andrew Sullivan in the Washington Times and Fred Kaplan on Slate.com. Questions about the failure to strike the camp were raised at hearings conducted by several congressional oversight committees both before and after the start of the war in Iraq.

Each time the questions were asked, administration officials declined to answer them in public session or provided incomplete, equivocal responses. Novak himself admits that the public responses from Pentagon and CIA officials have been "cautious" -- which is why I raised the question with Rice. While she did not acknowledge that an attack against Zarqawi's camp had been contemplated, she did say that "Zarqawi was on people's radar screens" and described the administration's efforts to capture Zarqawi and cripple his network. Her conclusion? The United States "never had a chance to get Zarqawi."

Rice's answer is the most forthcoming description of actions taken against Zarqawi and his network that I have heard from a top administration official. I have no reason to doubt it. Considering the havoc being created by Zarqawi in Iraq right now, I'm glad "This Week" viewers got to hear it.

Stephanopolous takes-- or at least says he takes-- Rice's statement as being more definitive than I take it to be; I've already blogged about that. Just wanted to keep you up-to-date on the latest.

Two years ago, Ring v. Arizona (in which Justice Scalia concurred) held that the Jury Trial Clause requires juries, not judges, to find the basic facts underlying the aggravating factors that cause the imposition of a death sentence. But what to do about people who had already been sentenced under the old scheme, and whose sentences were now being reviewed via habeas corpus?

The standard doctrine generally says that new constitutional rules aren't retroactive as to habeas cases, unless the new rule is needed to make the judicial process substantially more accurate. So does the Ring jury trial requirement qualify? In Schriro v. Summerlin, which was decided a few weeks ago, Justice Scalia (writing for the five conservatives) held that it doesn't — and here's the core of his argument:

The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so — they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s]" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.

First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. Finally, the mixed reception that the right to jury trial has been given in other countries, though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an "'impermissibly large risk'" of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.

This is a sensible argument, and the distinction Justice Scalia draws with regard to foreign practices — not relevant to the meaning of the right, which should be decided with reference to the Framers' views and American traditions, but relevant to empirical questions, such as those that the Court's retroactivity rules raise — is a plausible one. But it's important to note that even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to draw such distinctions, and to consider foreign practices in some situations.

I think critics of some Justices' use of foreign law — especially the shrillest critics, who denounce such use as a near betrayal of the Justices' oath — should keep these distinctions, and other similar ones, in mind. Thus, for instance, the reference to foreign attitudes in the Lawrence v. Texas majority may be different from the reference to such attitudes in the Grutter race preferences case, and still other uses of foreign practices might be treated differently still.

I like Linda Greenhouse a lot, and she's certainly a very experienced and knowledgeable Supreme Court reporter. Still, I noticed this inaccuracy in her end-of-Term piece Saturday:

The second of the chief justice's major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist's opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general "school choice" plan.

As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? . . .

If that were really the question in Locke v. Davey, it would be quite remarkable -- I know of no Supreme Court or federal appellate opinion that has ever suggested that vouchers were constitutionally required. Clearly a state is constitutionally entitled to subsidize only public schools. (There are arguments that the state shouldn't be entitled to monpolize publicly funded education this way, but they are clearly losing arguments under today's doctrine, and likely wouldn't draw a single vote on any federal court.)

The question in Locke was different -- given that equal treatment of religious education and secular private education is permissible, is such equal treatment also constitutionally required? Davey's claim wasn't that vouchers were constitutionally required -- it's that once a voucher is given for a wide range of secular private education, religious private education couldn't be treated any worse.

This question is much closer, which is why the Ninth Circuit accepted this claim, as did two dissenters on the Court, in my view rightly. A careful reader might understand that this is the real issue, notwithstanding the way the article framed the question (especially given the paragraph that comes before). But I suspect that an average reader, who is breezing through the piece, would take the question quite literally.

I'm also not wild about framing the issue as an "argument for the religious subsidies." We probably wouldn't call an argument for evenhandedly including black applicants alongside white, Asian, Hispanic, and other applicants in some subsidy program -- with no distinction based on race -- an "argument for subsidies for blacks." We'd call it "an argument for equal treatment for blacks." Still, this is a somewhat closer matter; the framing of the question in the following paragraph is more clearly inapt.

So that's just another reminder of the need for caution in reading even work from experienced, respected writers: Mistakes happen, especially when one is writing with a short deadline, and with a word limit that sometimes yields imprecise shorthand. Even when an expert is writing (whether the expert is a Supreme Court journalist or a law professor), the reader should always be careful and skeptical. Unfortunately, many readers, especially ones who are quickly skimming the article, aren't likely to invest the effort into such skepticism -- and a writer's error can become an error in the thinking of hundreds of thousands.

Aeon Skoble, one of my favorite correspondents and now a guest-blogger at Liberty & Power, asks, quite reasonably,

All of the reasons he gives for being dissatisfied with Bush are perfectly valid, but I don't see why that implies voting for Kerry. Why not vote 3rd party, or just stay home that day? Bush's shortcomings aren't pluses for Kerry if Kerry himself is also objectionable, as Jacob notes he is.

Several people have said something similar in e-mail or in comments on other people's blogs, all apropos my unenthusiastic statement of intent to vote for Kerry last week. (It was then a conditional statement of intent-- conditional on Kerry not picking Gephardt. It's now a statement of intent.)

I offer a quick statement of my own reasons for abandoning an uninterrupted habit of Libertarian presidential votes. This isn't an attempt to persuade people not to vote Libertarian. A thriving LP seems to me a very good thing, and I'll probably vote Libertarian for every downticket race in which there's a candidate.

First, this is really the first presidential race of my adult life in which I've had a very strong commitment about which major-party candidate was the lesser evil. I've had leanings in previous races, but they were uncertain, and typically mitigated by a sense that both major-party candidates had crossed some threshold of unacceptability. This time, it seems very clear to me that the Bush Administration has failed basic tests of competence in policymaking and execution, and of trusteeship of long-term interests like alliances and trade negotiations and moral credibility. I expect to dislike an awful lot of John Kerry's policies. But I don't expect that kind of failure of the basic responsibilities of the office. Four or eight or twelve years ago, I guess I wouldn't have known how important I found those considerations, as I hadn't seen a president who had failed along those dimensions. Now I have, and I do.

Second, my LP enthusiasm is much diminsihed, both by inevitable third-party burnout and by a sense that the party never really came to terms with the Browne finance scandals. This is a very minor consideration, but it does have something to do with the absence of any LP fire in my belly.

Third, and most important: I find that this year I can't actually will the universalization of an LP vote. That is, I don't want Badnarik to become President. Casting a vote for him in the sure knowledge that he won't adds some infinitessimal weight to the LP's public cause and credibility, and that's good. But I've always voted in good faith for the person I most wanted to be elected President (heretofore always knowing that they wouldn't be, but still sincerely willing it). Contrary to what third-party enthusiasts sometimes say, those have been least-evil votes as well-- not least because I knew I was trading off policy agreement for a radical lack of actual governing experience and probable competence. (Yes, I know that "lack of governing experience" is self-fulfilling, if one never votes for third party candidates because they've never held office. It hasn't stopped me from voting for them, but it counts against them.) But, choosing among the available candidates, I was able to sincerely will a Libertarian win.

This year I can't, partly because it turns out I do value governing competence pretty highly, partly because Badnarik is conspicuously inexperienced even as LP candidates go, but mostly because of this.

First, allow me to dispel a myth. People in the Middle East do not hate us for our freedom. They do not hate us for our lifestyle. They hate us because we have spent many years attempting to force them to emulate our lifestyle.

The U.S. government has meddled in the affairs of the Middle East far too long, always with horrendous results. It overthrew the democratically elected leader of Iran and replaced him with the despotic Shah. After making Iranians the enemies of Americans, the U.S. government gave weapons, intelligence and money to Iran's mortal adversary, Saddam Hussein. The U.S. government also helped Libyan tyrant Col. Qaddafi come to power, propped up the Saudi monarchy and the Egyptian dictatorship, and gave assistance to Osama bin Laden.

Most Americans have forgotten these events. But the people of the Middle East will always remember.

It was because of American troops in Saudi Arabia, lethal sanctions on Iraq, and other serious violations of International Law that 3,000 innocent Americans paid the ultimate price on September 11, 2001.

The proper response would have been to present the evidence as to who committed the heinous act both to Congress and to the people, and have Congress authorize the president to track down the individuals actually responsible, doing everything possible to avoid inflicting harm on innocents.

A Libertarian president would not have sent the military trampling about the world, racking up a death count in the thousands, wasting tax money on destroying and re-building infrastructure, creating more enemies, and doing the kinds of things that led to 9/11 in the first place.

This goes beyond opposition to the war in Iraq. This amounts to a radical misunderstanding of 9/11, Al Qaeda, and the reality of radical militant Islamism. It's an insistence that even the Afghan war was unjustifiable and unjustified. And it's the kind of silly Panglossianism about politics that says, "Any wrong must be traceable to another wrong; if only we never did anything wrong, no one would ever do anything wrong to us." That falls below my threshold of a responsible understanding of the state of the world right now. It's out of the realm of policy disagreement and into the realm of a view of the world that I can't responsibly wish the inhabitant of the White House to hold. Security, as Democratic leaders warned Dean enthusiasts last year, is a sine qua non in this election.

At some level this is silly, of course. I could vote for Badnarik in complete confidence that my vote wouldn't put him into office, and I'd never have to worry about it again. But I do try to vote as if my vote would be decisive, irrational as that is. It's always led me Libertarian in the past. Absent some radical unforeseen change in Kerry, it won't this time. This time I've got a clear preference that the incumbent be turned out, and a clear threshold difference with the Libertarian. I trust Kerry's basic competence, and trust his basic understanding of the security situation. Neither of those statements is high praise. But I need to be able to say them both about a candidate I can vote for in good faith.

Update:

I'm not sure I'd want to commit to this as a universal principle, but I quite liked the sound of the following from a commentator at Kevin Drum's site: It's better to have a big competent government that admits it's big, than a big incompetent government that pretends it's small.

It hasn't received much coverage in the American media (but see this Krauthammer column), but Israel has been scoring a series of remarkable successes in killing or capturing leading figures of all the major terrorist groups in the West Bank. Last night, the leader of the Nablus Popular Front for the Liberation of Palestine and his deputy were killed (an Israeli soldier and two civilians also died, the civilians after the PFLP leader heroically ran into an apartment building occupied by civilians, and shot at Israeli soldiers, wounding one, while using the civilians as shields). Because of Israel's aggressive use of force and the building of the first part of its defensive barrier, there have been no suicide murders within Israel for months. There may not be, as the Israeli Left constantly argues, any military solution to suicide bombings, but it sure seems that the military can help quite a bit. That's one lesson. The other lesson is the effectiveness of going after the terrorist leadership--cutting off the head of the snake, as they say, actually works. There may be just as many (or more) young Palestinians willing to be suicide murderers, but without proper logistics, weapons, etc., they are impotent.

Sunday, July 4, 2004

The Impressiveness of Farenheit 911:
Having read the lengthy piece by David Kopel, Fifty-six Deceits in Fahrenheit 911, I was struck by the sheer cunningness of Moore's film. When you read Kopel, try to detach yourself from any revulsion you may feel at a work of literal propaganda receiving such wide-spread accolades from mainstream politicos, as well as attendance by your friends and neighbors.

Instead, notice the film's meticulousness in saying only (or mostly) "true" or defensible things in support of a completely misleading impression. In this way, Kopel's care in describing Moore's "deceipts" is much more interesting than other critiques I have read, including that of Christopher Hitchens. Kopel's lawyerly description of Moore's claims shows the film to be a genuinely impressive accomplishment in a perverse sort of way (the way an ingenious crime is impressive)--a case study in how to convert elements that are mainly true into an impression that is entirely false--and this leads in turn to another thought.

If this much cleverness was required to create the inchoate "conspiracy" (whatever it may be, as it is never really specified by Moore), it suggests there was no such conspiracy. With this much care and effort invested in uncovering and massaging the data, if there really was a conspiracy of the kind Moore suggests, the evidence would line up more neatly behind it, rather than being made to do cartwheels so as to be "true" but oh-so-misleading. If the facts don't fit, shouldn't we acquit?

Update: Fred at Stone Court correctly notes an aspect of Kopel's column I decided not to mention: His count of 56 "deceits" is padded. Some items he takes issue with are not "deceits" and, in at least once case, I noticed what seemed to be double counting. So Fred's point is an entirely fair one. What I think is most interesting about Kopel's post, however, (and what I chose to blog about) is not the number of "deceits" he identifies but the cleverness with which he shows how Moore uses "true facts" (as the National Lampoon used to say) to give a false impression. To defend these particular claims of Moore as "true" or "defensible" is to miss the point I was making of why Kopel's list is so interesting and instructive.

Sunday Song Lyric:
It is hard to think of a more appropriate song lyric for the Fourth of July than the national anthem. While everyone knows the first verse to Francis Scott Key's Star Spangled Banner, hardly anyone knows the second (let alone all four). Of note, the anthem was written during the war of 1812, not the Revolutionary War. Key, a lawyer (imagine that!), was inspired by the sight of the flag raised above Fort McHenry after the British had shelled the garrison through the night in 1814. Both the song and the flag became known as the "Star Spangled Banner." Here are the lyrics:

Oh, say can you see, by the dawn's early light,
What so proudly we hailed at the twilight's last gleaming?
Whose broad stripes and bright stars, through the perilous fight,
O'er the ramparts we watched, were so gallantly streaming?
And the rockets' red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
O say, does that star-spangled banner yet wave
O'er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, now conceals, now discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines on the stream:
'Tis the star-spangled banner! O long may it wave
O'er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has wiped out their foul footstep's pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation!
Blest with victory and peace, may the heaven-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, for our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner forever shall wave
O'er the land of the free and the home of the brave!

Saturday, July 3, 2004

Yup, that's what Clayton Cramer is noticing. Two to three percent of the population, and it turns out that they dominate the legal system. It's not just that a lot of heterosexuals happen to agree (rightly or wrongly) with the gay rights movement, so that heterosexuals dominate the legal system but happen to take many pro-gay-rights views. No, it's homosexual dominance.

Cramer is a very smart guy, who has done a lot of work that I admire for its accuracy and thoughtfulness (chiefly on guns). I link to him on many occasions, because he often makes good points. (UPDATE: For instance, the post I criticize also correctly condemns the Swedish legal system's punishment of antigay speech.) But if I am to condemn spurious claims of Jewish control of this or that institution — for instance, fantasies of Jewish or Israeli control of U.S. foreign policy, extrapolated from the fact that non-Jewish U.S. leaders have been persuaded that they should support Israel — I can't let this sort of stuff pass.

Friday, July 2, 2004

Summer Music in Boston:
One of the great things about living in Boston is the summer concert scene. So much to pick from, so close at hand. Tonight was the best Boston Pops program I ever heard. In its season finale, Keith Lockhart conducted a Gershwin tribute including American In Paris, Three Preludes (scored for orchestra) and Rhapsody and Blue (along with some Gershwin songs). The final act included a typical Pops sing along, ending with the 1812 Overture, a piece the Pops had prepared for the annual Fourth of July Concert on Sunday. There is a reason these pieces are popular classics, especially when performed live. And our table was in the fourth row center.

I did not really get my act together this summer to get rock concert tickets, but this morning I located on line some 16th row seats for the Eric Clapton concert tomorrow night, without even having to pay an unreasonable premium. Sunday, we get to watch the fireworks on the Charles from the roof of the BU Law Tower--a 17 story structure that always looks better when you are inside looking out, but which has great views. In two weeks, Chris Isaak and the Silvertones come to town. Ah yes, Boston in the summer when it seems everyone clears out of town and the roads and restaurants are all uncongested. Why go to the Cape?

Update: Clapton was great last night, as was opening act Robert Randolph. This review expresses it better than I could. During the blues segment, I did catch myself thinking that, from what I have read, THIS was the music Clapton loved better than his own. The blues is fine--and I have bought his blues albums--but others can play it well. Clapton's own music, with its blues element, is unique and wonderful. Yet to him it is somehow inferior. And that I find sad.

Update: Saw the fireworks last night and they were spectacular. Boston, however, must have the worst music in the country to accompany them. Chicago's is much better. And the Boston Pops Concert was rearranged to fit the national broadcast, so the 1812 Overture was played before 10pm (with a few fireworks at the end) when the network broadcast began, at which time the concert resumed with David Lee Roth, etc. before culminating in the fireworks after 10:35p. Together with long breaks for commercials, the whole presentation was disjointed. Again, Chicago's (and I assume many other city's shows) are much better constructed. But the view was grand from the rooftop and the fireworks themselves were awesome.

Adam Charnes, a very smart lawyer who has briefed this issue, reports that he "did a lot of research on the question and was unable to find any commentator who read article 5 of [the Third Geneva Convention] as requiring a hearing to determine whether the detainee was a belligerent. Nor did Hamdi's amici so claim in their briefs (though they often implied it)."

Readers Matthew Bower and Scipio (Scipio Mississippiensis, not Africanus) report that the Mississippi judge who published that homosexuals-should-be-locked-up rant was the equivalent of a Justice of the Peace; people who hold this post in Mississippi have relatively modest powers compared to normal judges. They also needn't be lawyers, or even college graduates; Scipio mentions that he has a vague recollection that Judge Wilkerson is indeed not a lawyer.

I suppose this makes me feel a little better — at least this fellow can't do that much damage, and his comments do not not necessarily reflect on the quality of the Mississippi Bar's opinions or articulateness.

Some people have said that the Supreme Court's Guantanamo detainee decision might have been influenced by the Administration's refusal to give the detainees the procedures to which they're entitled by the Geneva Conventions. The Geneva Conventions are a treaty that we signed, the argument goes, the government is bound to give this procedure, so we should interpret our habeas corpus statute as mandating at least something like what we've promised to provide in any case.

I'm not sure whether the Justices might indeed have been influenced by what they may see as Administration overreaching here. But, as best I can tell, the Geneva Conventions do not require the U.S. to give hearings to detainees who claim that they're actually civilians and should therefore be freed. (Recall that they're "challenging the legality of their detention at the Base," alleging that they have never "been . . . combatant[s] against the United States or ha[ve] ever engaged in any terrorist acts.")

1. Let's start with the Third Geneva Convention, which deals with prisoners of war. First, the Administration is quite right that al Qaeda irregulars don't qualify for protection (see article 4).

Second, while there's obviously debate about whether the detainees are al Qaeda irregulars, as opposed to members of the regular Afghan army or (as these petitioners say) not soldiers at all, I can find nothing in the Convention that gives them a legal right to a hearing on those questions. (Naturally it is to be expected that the U.S. government will seriously consider claims that they're detaining people by mistake, and the U.S. government's position is that it has considered these claims and rejected them -- the question is whether these people have a legal right under the Conventions to a formal hearing on the matter.)

Article 5 does provide for "competent tribunal[s]" -- which need not be civilian courts, but could just be relatively informal military tribunals -- to determine certain matters about the detainees. But here's what the Article actually says:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Article 4 in turn defines who is a prisoner of war, and thus entitled to the Convention's protection, as opposed to an unlawful combatant, who is not entitled to its protection. The basic distinction is between regular and generally uniformed members of the armed forces, and irregular and non-uniformed fighters.

So the tribunal is not required. Rather, if a tribunal is absent, and there's "doubt" about whether the people are regular soldiers (who are entitled to protection of the Convention) and irregular illegal combatants (who are not entitled to protection of the Convention), the government simply has an obligation to treat the people as prisoners of war (who after all are prisoners, and may certainly be detained for the duration of the conflict) and give them the Convention's protections. The terms of article 5 are quite clear on that. And under those terms, the government has no treaty obligation to providing hearings as to whether the detainees were soldiers or civilians. (The U.S. has indeed used tribunals in the past to decide whether the detainees ought to be released as civilians, but not, as best I can tell, as a matter of treaty obligation.)

The Administration has been faulted for not convening such article 5 tribunals. The administration's position is that there really is no "doubt" as to the status of these people, but let's say that the administration is mistaken. Its only obligation under the Convention would then be to treat the people as POWs -- to treat them humanely (as the Administration has said that it would), and not try them simply for having levied war against us (that's where being a lawful combatant as opposed an unlawful one makes a difference).

Nothing that I could find in the Convention mandates Parties to convene tribunals to decide whether detainees are entitled to go free altogether, or to free detainees in the absence of such tribunals. That's simply not something for which the Convention provides; and the distinction makes sense: Governments are understandably much more willing to sign a treaty that obligates them to err on the side of treating detainees humanely, and not punishing them beyond just detaining them (which is what the Third Convention mandates), rather than a treaty that obligates them to err on the side of releasing detainees who the government thinks (rightly or wrongly) are indeed enemy combatants.

And recall that the detainees' challenge is not merely that they were being denied the benefits of POW status under the Convention; the remedy they seek is not an assurance of such benefits. Rather, it's an assurance of a hearing on whether they are civilians and entitled to be released, a hearing that the Convention does not mandate.

Well, article 4 of that convention specifically exempts from its protection "Nationals of a neutral State who find themselves in the territory of a belligerent State . . . while the State of which they are nationals has normal displomatic representation in the State in whose hands they are." The Rasul v. Bush petitioners are Australians and Kuwaitis, so they're covered by this exemption -- the Fourth Convention doesn't apply.

The Fourth Convention would apply to Afghan nationals. But article 5 of that convention specifically says:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The terms of these provisions leave a great deal of discretion to the detaining power -- the question is whether the power "is satisfied" that the person is "definitely suspected of . . . activities hostile to the security" of the power, not whether the power is correct in so suspecting. Unlike with the Third Convention's article 5, the Fourth Convention does not provide for tribunals to make this determination. So even as to the Afghan Guantanamo detainees, who were not plaintiffs in Rasul v. Bush, the Fourth Convention requires no procedure.

* * *

What I say above is somewhat tentative: I'm not an expert on the Conventions, and might be mistaken. If someone knows of specific provisions in the Conventions that contradict my view, I'd love to hear this, and may revise my judgment accordingly.

Also, it may be that the Court was indeed influenced by what it saw as the government's failure to do what article 5 of the Third Convention required -- even though such procedures go only to the conditions of confinement and possibility of future trial, not to the release from detention that the petitioners sought -- and decided that the Administration needed reining in. And none of the above expresses an opinion on what the Administration should be doing, as a matter of justice, prudence, or even U.S. habeas or constitutional law, with the Guantanamo detainees. Finally, it may well be that some other countries or organization take a broader interpretation of the Conventions than the text of the Conventions authorizes.

But as best I can tell, it is not correct to say that the Administration is violating the text of the Geneva Conventions (and it is the text that the U.S. has ratified) by failing to give the detainees a hearing on whether they are indeed civilians who should be released. The text of the Conventions does not require any such hearings.

Alex Sundstrom suggests this answer to the statutory rape problem (again, note that I do not necessarily endorse any of the readers' views that I post here):

I think the most justifiable statutory rape law would apply only to men sleeping with teenage girls (retaining the standard 4-year age gap). My reasons are utilitarian ones, based on a market theory of dating.

(1) Statutory rape laws protect the future happiness of girls. Teenage girls tend to go after lower status males than they will be able to get later in life. They do so because (1) it's socially unacceptable to date teenage girls, so more responsible men/better mates will avoid doing so, (2) even a 30 year old alcoholic might seem more desirable to a teenage girl than the pimply and immature teenage boys she encounters at school, and (3) because teenage girls have a low supply of potential suitors with money, and because women like men who spend money on them in general, it's cheaper to impress a teenage girl — a 15 year old is a much cheaper date for a 30 year old alcoholic than a 25 year old woman would be.

This is bad for girls because the likely consequences — extensive sexual contact and potential offspring and/or longer-term partnership with undesirable mates — will make them unhappy later on, when they realize they can do better. If you restrict a girl's options to sex with age peers, she might make dating decisions she wouldn't make later in life (when all the dumpy social misfits have become attorneys, and can buy her things), but her dating choices will more closely track her future choices than without a statutory rape law.

(2) Of course, the law might affect what's socially acceptable. If this is the case, then it is bad for society to change the statutory rape laws and encourage men to sleep with teenagers, reducing the problem outlined in (1), they will be less likely to start stable families, and grown women will suffer.

This effect seems plausible to me — the age of consent in Ontario is 14, and my girlfriend's parents, who live there, see nothing remarkable about a 22 year old dating a 15 year old. [That's a hypothetical 22-year-old; Sundstrom isn't dating a 15-year-old himself. -EV] The talismanic effect that turning 18 currently has also seems pretty artificial: every red-blooded male knows that men are very much attracted to 16 year old girls, but just pretend not to be until those girls turn 18. A change in the statutory rape laws might affect this attitude (or it might not, considering the fact that sleeping with 17 year olds is already legal in many states).

If repealing statutory rape laws causes an increase in men sleeping with and dating teenage girls, they will increasingly choose to do so. Setting aside whether teenage girls are better looking than older women, sixteen year olds are at the very least much less prone to obesity than older women. So some men who place a value on thinness will choose to date a younger, thinner girl than they otherwise would have before it was less socially acceptable to do so.

These encounters are probably going to be of the casual-sex variety, because (1) intellect, maturity and potential for long-term companionship are not what grown men look for in teenage girls, (2) a shift in social mores would probably occur first among people who are already having casual sex with older women before it would occur in a marriage context (in no small part because of (1)). Because an increase in social acceptability of sleeping with teenagers would increase the supply of attractive girls more than it would increase the supply of attractive, marriageable girls, more men will be able to engage in commitment-free sex with attractive partners, and more men will thus choose to do so. They will be doing so instead of getting married and raising families.

None of these concerns apply to a situation where teenage boys sleep with adult women.

(I take it his point, by the way, isn't just that sex with teenage girls affects their future happiness in some small way — obviously, not all things that make teenagers unhappy should be criminal — but rather that it potentially has very large effects.)

Note again, please, that I probably won't be posting responses to people's suggestions; but if you have your own suggested framework, that you can defend in some detail but not at very great length, and that isn't too similar to what's been posted yet, please do pass it along.

Last week, Slate posted a response to some criticisms of its Kerryisms column, including to my criticisms. Kerryisms, the author says, aren't really attempts to translate Kerry's words into "plain English," though they were originally billed that way.

OK, that's fine -- but what then are they? The response talks about "get[ting] the joke," but what's the joke? The Kerryism columns continue to say that they focus on Kerry's "caveats," "curlicues," and "embellishments." The terms "curlicues" and "embellishments" seem to suggest that the material the columns point to is unnecessary (redundant or otherwise surplus). But often, it's not; it's needed to make Kerry's point politically effective or even simply accurate.

The term "caveats" seems to suggest that the removed material may be necessary, but somehow limits or takes away from Kerry's main point -- but what's wrong, funny, or even noteworthy about Kerry's acknowledging that his answers are more complex than a simple "yes" or "no"?

The strong spending caps in my plan will ensure that spending doesn't grow faster than inflation. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area except security and education and mandatory programs like health care, Social Security, and Medicare. So when I say "a cap on spending," I mean it.

Here's the Kerryisms version:

The strong spending caps in my plan will ensure that spending doesn't grow. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area. So when I say "a cap on spending," I mean it.

Where's the joke? Kerry, to his credit, candidly said that he's talking about spending in real dollars, not nominal dollars ("faster than inflation"). If that's his plan (and it's a plan that's quite consistent with "a cap on spending"), he should make it clear. It seems to me that such candor and precision is to be praised, not condemned; and while it might make his prose less punchy, it may actually be politically wise, as well as more honest: It keeps his adversaries from faulting him for inaccuracy.

He also didn't say that he'd institute across-the-board cuts; he said he'd institute such cuts in all programs except some that he seems to think are too important to cut. Again, if that's his view, it's good that he reveals it -- and it may be politically quite important for him to reveal it, since otherwise people might fault him for threatening to cut Social Security, national defense, and the like. How is it clearer, in any other way better, or even funny to edit that out?

Maybe the claim is that with these "caveats," Kerry's last sentence ("So when I say 'cap on spending,' I mean it") is no longer accurate. But that's not right, either. First, as I mentioned above, even if "cap on spending" is treated as "stabilizing spending," it's quite fair -- even economically more sensible -- to focus on spending in real dollars, not nominal dollars, and still call stabilization a "cap." Second, I take it that Kerry's point in the next sense is that if "Congress fails to keep spending in line," his "budget caps" would mean huge cuts in what he sees as the optional areas, but not in the really important areas. It may or may not be good budget economics, but I don't see much by way of "curlicues," "embellishments," or even "caveats," unless by "caveat" you mean any nuance or retreat from an absolutist position.

So just what's the point here? Here's the columnist's response to my specific past criticisms, which I take it would also apply to the criticism here:

Another blogger, Eugene Volokh, gets the joke and doesn't like it. "Another possibility is that 'Kerryisms' has evolved into an attempt to show simply that Kerry uses a lot of qualifiers, instead of giving very simple answers," Volokh writes. "But often, as in this case, the right answer isn't simple. It's actually not terribly complex, but it's not one-word simple. Is it really good to fault a politician for refusing to oversimplify?"

That's a good and fair question. I prefer to let each reader decide for herself, case by case. I should have explained the general idea more clearly. Now I have. The rest of the judgments are up to you.

Can that possibly make sense? Surely the author must be trying to say something with his column. It can't just be: "Here's a Kerry statement, and a version without qualifiers. Decide for yourself if the qualifiers were necessary / useful / important." (This would be like the Bushisms column giving a bunch of Bush statements, some wrong and funny but some perfectly accurate or at worst slightly off, rather than focusing just on material that's worth criticizing or mocking. Oh, wait, that is what the Bushisms column does . . . .)

Presumably the columnist must have chosen this particular quote not because the quote simply reflects Kerry's praiseworthy refusal to oversimplify. The columnist must have chosen it because he thinks something about these particular qualifiers should lead some readers to think there's something wrong with what Kerry said. Well, what is that?

Lawyer Dean Boland has testified as a defense expert in three child-pornography cases in Northeast Ohio . . . . Charges were thrown out in two of the . . . cases, which sent waves of alarm through the law-enforcement community. . . . Boland, 37, of Lakewood, is one of a handful of criminal-defense experts in the country with the knowledge to testify about digital-imaging technology and the ways pornographers are using it to enhance and distribute their wares via the Internet. . . .

Boland has teamed with criminal defense lawyers who are exploiting a provision of [child pornography] law that says to obtain a conviction, a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child -- an extremely difficult level of proof for police and prosecutors, Boland says.

Without the evidence to refute Boland's testimony and prove authenticity, judges threw out child-pornography charges in Summit and Portage counties in March. A Columbiana County judge has reserved his ruling until trial. . . .

"The majority of child pornography downloaded from the Internet, as sick as the images are, really can't be determined to be actual children," Boland said. "It's very easy to fake these images, and prosecutors need to be required to authenticate their evidence." . . .

Recall that in Ashcroft v. Free Speech Coalition, the government argued that non-obscene virtual child pornography -- i.e., material that looks like children having sex or posing lewdly, but that actually didn't involve the use of real children -- should be unprotected in part because otherwise it would be hard to enforce bans on actual child pornography. The Court rejected that argument:

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.

The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . ." The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

Justice Thomas concurred in the judgment (though his vote wasn't needed to form the Court's majority); he reasoned:

In my view, the Government's most persuasive asserted interest in support of the [CPPA] is the prosecution rationale -- that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer generated, thereby raising a reasonable doubt as to their guilt. At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a "computer generated images" defense.

While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.

The Court suggests that the Government's interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because "[t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech."

But if technological advances thwart prosecution of "unlawful speech," the Government may well have a compelling interest in barring or otherwise regulating some narrow category of "lawful speech" in order to enforce effectively laws against pornography made through the abuse of real children. . . .

Will cases such as the ones described in the Plain Dealer article -- assuming that they indeed reflect serious obstacles to prosecution of real child pornography, and not just easily remediable errors on the government's part -- persuade Justice Thomas, and perhaps even one of the Justices in the Free Speech Coalition majority (say, Justice Breyer)?

Thanks to reader John Waszak for the pointer to the newspaper article.

Robert Novak at Town Hall calls the Zarqawi story an "urban legend," and says his source at the CIA agrees.

One CIA source puts this aborted Zarqawi raid in the same category as Michael Moore's "Fahrenheit 9-11," which spreads such false information as George W. Bush's conspiring to get Osama bin Laden's relatives out of the U.S. after the terrorist attacks.

Note that the question I asked yesterday about NBC's Pentagon officials applies equally to Novak's CIA source: how do they know? If the decision not to attack was made by the NSC, then there's a pretty small number of people who can credibly claim to know why it was made. The CIA source might be telling the truth as far as he or she knows, but not be in a position to know very well. In any event, I'd love to hear Novak's CIA source's account of why the attack plans were rejected.

One item from the column I hadn't seen before:

Sen. Clinton on the next day, March 4, called the NBC report "troubling" and asked Gen. John Abizaid about it. The Central Command commander in chief replied, "I would be very surprised to find out that we had a precise location on Zarqawi." Unsatisified, the senator asked for "further investigation."

On March 9, Hillary Clinton asked CIA Director George Tenet about the story. Tenet: "I don't know that Zarqawi was up there at the time, Senator. And I don't know that the report accurately reflects the give-and-take of the decision-making at the time." In CIA-speak, that was a "no."

And, finslly, someone asks the NBC reporter for some follow-up.

Jim Miklaszewski told me he stands by his story, and pointed to House Armed Services Committee hearings April 21. Congressman Snyder brought the NBC story up to retired Gen. John Keane, and asked why the attack was rejected. "No, I can't help you," the former Army acting chief of staff replied. "We were looking at it as early as the Fourth of July weekend before we commenced activities against Iraq."

I'm going to check out the Congressional transcripts Novak quotes to see what else is there.

By the way, one of my initial questions has now been answered. Has there ever been an official denial? Yes, there has.

The character of that official denial seems to be: unless we had 100% certainty that Zarqawi himself was in the camp at any given moment, the failure to attack is not an oddity requiring explanation. It's been pointed out to me (by a Republican) that this is an odd standard for administration officials to hold themselves to in any event, and that in that sense it's oddly like the claim "If we had known that terrorists were going to hijack airplanes on September 11 and fly them into buildings, we would have acted." In wartime, one rarely has perfect information; that neither excuses nor explains inaction.

But both Zarqawi himself and the Ansar al-Islam camp were identified as items in the casus belli. As best as we knew at the time there were ricin prouction facilities and terrorist training facilities at the camp, and the fact that this was so was relevant to the case for war. So simply saying "We didn't know for sure when he was in the camp" isn't responsive to the charge that an attack that would clearly have been more than justified as part of the war on terrorism was vetoed in order to preserve a casus belli against Iraq (though it is responsive to the charge that, by letting Zarqawi himself live, the administration became responsible for all his subsequent crimes).

I'm trying very hard to be careful and thorough, and to present new information and new claims as they become available. Apparently I'm not quite succeeding at striking the necessary balance of tone, so let me be explicit. As best as I can judge the available evidence, including the various public statements as well as the various anonymous claims-- it seems likely to me that the decision not to attack the Ansar al-Islam camp many months earlier was made fo rreasons that were primarily political rather than primarily logistical or legal. Given what Powell and Bush were saying about the camp and Zarqawi at the time, and what we now know western intelligence agencies knew about them at the time-- that is, even without the benefit of hindsight and the knowledge of the blood on Zarqawi's hands since then-- it seems to me that there was an extremely powerful case for attacking the camp, especially if we had even moderately good reason to think Zarqawi himself was present in it.

I'm not sure that we yet have (even anonymously) any statements about why the NSC vetoed the attacks by anyone who was in a position to know. And the on-the-record statements by those who were in a position to know have been maddeningly non-committal on every point except that we never knew, with 100% certainty, that Zarqwai was in the camp at any given moment. They have left plenty of room to think that the attacks were vetoed at least in part to preserve a casus belli or to facilitate negotiations on the Iraq war resolution in the Security Council; and they have left plenty of room to think that there were well-developed and credible plans for taking out the camp whose only flaw was that they were not guaranteed to kill or capture Zarqawi. I think we have good reason to think that there is mystification, at best, in the Pentagon about why the attacks were vetoed, and a sense both there and in the Intelligence Committee that no persuasive logistical reason was ever given for not attacking. Neither Novak nor his source nor the public records he quotes provide any such reason. That's not inherently surprising; even a year after the fact there can be good reason to keep logistical and intelligence details secret from the public. The same doesn't apply to the Pentagon or the Intelligence Committee.

I don't myself have any sources. But I've checked with a couple of people who do; I wanted to get a sense of whether I was wasting (quite a lot of) my time and my readers' time on a ghost of a story. What I've heard back leads me to keep digging. I won't waste readers' time or credulity by talking about what I've heard at two degrees of separation; it's enough to persuade me of a couple things, but I fully recognize that it doesn't count as sourced reporting.

Anyway, I intend to continue quoting what I can find about the Zarqawi/ Ansar story, and especially to quoting denials, in part because I started this theme off three days ago by talking about the absence of denials and in part because I really do mean to let readers know what I know about this story. But my quoting a denial does not mean that I think the denial is decisive, definitive, or credible. If I read something that really convinces me the charges are untrue, I'll be entirely unambiguous about that.

In the meantime, I'll continue to quote and link to the material that's entering into my sense of the balance of probabilities, while freely, unhappily, acknowledging that my current sense is that Miklaszewski and NBC are somewhere closer to the truth than Novak is.

Thursday, July 1, 2004

about her lesbian ex-partner, who has joint custody: I blogged about this case last November, when the judge entered the order; here's a brief excerpt from the original news story:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . .

Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. . . .

Today, the Colorado Court of Appeals reversed the order, though leaving open the possibility that it could be reimposed:

Finally, Clark contends the trial court violated the United States and Colorado Constitutions in ordering that, although Clark would be awarded ["]sole parental responsibility . . . in the area of religion,["] she would be required to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic. The court neither defined homophobic nor found that exposure to homophobic teachings would either endanger E.L.M.C.'s physical health or significantly impair her emotional development. We conclude that remand for further findings is necessary on both constitutional and statutory grounds.

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her . . . religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's . . . decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." . . .

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person . . . with responsibility for decision-making" within the meaning of § 14-10-130(1). . . .

Here, . . . we cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary. . . .

Clark does not assert, and we do not address, amicus Liberty Counsel's argument that lack of a definition of homophobic in the order creates a constitutional problem of vagueness and overbreadth. However, Clark may present this issue to the trial court on remand, in the context of the court's additional findings. . . .

So the restriction has been lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!

AMERICA IS IN TROUBLE!

I never thought that we would see the day when such would be here in AMERICA. The last verse of chapter one of the book of Romans in our HOLY BIBLE is my reason for responding and sounding the alarm to this. You need to know as I know that GOD in Heaven is not pleased with this and I am sounding the alarm that I for one am against it and want our LORD to see and here [sic] me say I am against it.

I am sorry that the California Legislature enacted a law granting gay partners the same right to sue as spouses or family members. Also, that Hawaii and Vermont have enacted such a law too.

In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.

I don,t [sic] know but I believe if we vote for folks that are for this we will have to stand in thh [sic] judgement of GOD the same as them.

I am thankful for our Legislators and pray for wisdom for them, on such unbelievable legislation as this.

May GOD bless each one of them in JESUS CHRIST NAME I pray!

Thank you for printing this,

Connie Glen Wilkerson

Bro. Connie C. Wilkerson

The Mississippi Commission on Judicial Performance asked the Mississippi Supreme Court to sanction the judge; the relevant Canon of Judicial Ethics turned out to be "A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Mississippi Supreme Court held 5-2 that sanctioning the judge would violate the First Amendment. A few thoughts:

An important question here is whether the First Amendment rule here should be the same as when the government is acting as sovereign, punishing (even criminally) speech by private citizens, or the same as when the government is acting as employer. I think this is not an easy question, but it's probably the critical one.

If the majority is right that the rule should be government-as-sovereign, then I think it's correct to say that the speech is constitutionally protected. The majority correctly dismissed the argument that there's a compelling interest in protecting impartiality and the appearance of impartiality:

No credible person could dispute that having impartial judges is a compelling state interest. But "impartiality" is not the same as the "appearance of impartiality." We find no compelling state interest in requiring a partial judge to keep quiet about his prejudice so that he or she will appear impartial.

Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants, including gays and lesbians. Allowing — that is to say, forcing — judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.

But I think the Court should have been free to reprimand the judge — not to remove him from office or otherwise take away any privileges, but to formally express its own views that his statement deserves condemnation. The majority seemed to suggest otherwise, but didn't explain why it couldn't exercise its own counterspeech as a remedy for the judge's speech.

The dissent had a plausible argument that the judge is a government employee, employed to do a job that his speech has ended up undermining. The judge might, for instance, end up having to recuse himself from cases where homosexuals are parties or even witnesses. At the same time, I'm quite troubled by two arguments by the dissent: "I do not agree that this type of speech — the judge's personal views regarding all homosexuals — relates to political and social community concerns" (p. 29) and

If the judge now before this Court had done no more than express his views on statutes concerning same-sex partners and legislation regulating their activities or their rights, the analysis could stop here. As earlier mentioned, Canon 4B expressly recognizes the unique value of judges contributing to improvements of the law and the legal system and acknowledges their freedom to speak out in these areas. However, when the judge in today's case stated that certain individuals in our society were sick and that they all needed to be indiscriminately placed in mental institutions, he crossed over the line!

(pp. 26-27). Here the dissent is wrongly denying that their view would seriously restrict judges' speech, rather than acknowledging that this is a substantial restriction but concluding that it's a justified one. To effectively and persuasively defend their "views on statutes concerning same-sex partners and legislation regulating their activities or their rights," judges would have to explain just why they think same-sex relationships are less worthy than opposite-sex ones — and to do that, they might well need to convey their "views regarding all homosexuals," which of course do therefore "relate[] to political and social community concerns." Perhaps the restriction is constitutional despite that; but judges shouldn't pretend that such a restriction really doesn't interfere with judges' ability to express their views concerning the law, or other "political and social community concerns."

Finally, it seems to me that even most reasonable critics of same-sex marriage or of Lawrence v. Texas have to be appalled by the judge's position. Gays and lesbians should be put in some type of a mental institution? Over five million Americans locked up because of their sexual preference? (Note that his argument couldn't even be defended on the grounds that it's a call to restrict conduct rather than just orientation — if homosexuals are mentally ill, they remain mentally ill even if they stop having sex.)

Views like his — plus of course spelling and capitalization like his — end up being the strongest arguments for the pro-gay-rights movement.

Thanks to reader Andy Lowry for the pointer.

UPDATE: Just to make it clear, my point in the second-to-last paragraph -- "Views like his . . . end up being the strongest arguments for the pro-gay-rights movement" -- is a descriptive one: When people hear stuff like this, they're much more likely to become hostile to the anti-gay-rights movement, and somewhat more likely to become sympathetic with the gay rights movement. Such a change in attitude may or may not be logically valid, but it is psychologically quite likely. Popular revulsion at people who back position X may often be worth a dozen logical arguments that position X is unsound.

ClaytoN Cramer, who I think took that paragraph as a normative argument, rather than a descriptive one, asks "By this reasoning, the prominent role of homosexuals in spreading AIDS ends up 'being the strongest argument for' opposing the gay rights movement." Sure. My guess is that the association between male homosexuals and AIDS has led quite a few people to a less pro-gay-rights position (though there may be complex effects stemming from the way AIDS may have created some sympathy for homosexuals as well, and may have led them to be better organized politically). Certainly if gay rights activists are seen as reckless about AIDS, for instance by opposing the closure of bathhouses and the like, or more generally by promoting promiscuous sex, this makes people much more likely to become hostile to the pro-gay-rights movement.

This is just human nature: When people see fools, bigots, or lunatics on one side of an issue, they are likely to be alienated from people on that side, and more sympathetic to people on the other side. Right or wrong, that's reality.

Following the recent beheadings of Americans and other foreigners in Iraq and Saudi Arabia, the U.S. press turned to various experts to identify a precedent in the Quran or Islamic history for this kind of gory murder. "Beheadings are not mentioned in the Koran at all," Imam Muhammad Adam El-Sheikh, co-founder and chief cleric at the Dar Al Hijrah mosque in Falls Church, Va., told USA Today. Yvonne Haddad, a professor at the Center for Muslim-Christian Understanding at Georgetown University agreed, telling New York Newsday, "There is absolutely nothing in Islam that justifies cutting off a person's head."

If reporters bothered to open up a copy of the Quran, say, N.J. Dawood's Penguin Classics translation, they'd find at least two relevant passages:

God revealed His will to the angels, saying: "I shall be with you. Give courage to the believers. I shall cast terror into the hearts of the infidels. Strike off their heads, strike off the very tips of their fingers." (Sura 8, Verse 12)

"When you meet the unbelievers in the battlefield strike off their heads." (Sura 47, Verse 4)

The piece correctly points out that this may not reflect the views of mainstream Islam today. (The Bible says that eating shellfish is an abomination, but that's not the view of mainstream Christians today.) But it also correctly points out that the quotes the newspapers passed along were inaccurate, and that newspapers should be less credulous on such matters.

The complaint is linked to here. The story about Justice Breyer's response is here. An excerpt:

A justice of the Supreme Court yesterday rebuffed a call by members of Congress for an investigation of a federal judge's statement last month that President Bush came to power in a similar way to dictators such as Hitler and Mussolini.

Justice Breyer said a committee he chairs that studies the enforcement of judicial-conduct rules is not the appropriate forum to hear the complaint against Judge Guido Calabresi of the Manhattan-based 2nd Circuit Court of Appeals.

"The committee has no authority — statutory or administrative — to investigate particular allegations of misconduct and impose sanctions," Justice Breyer wrote in a letter to Rep. Lamar Smith of Texas. . . .

Justice Breyer's response, which was released by the high court yesterday, points out that the established procedure for filing a complaint against a federal judge is to write to the clerk of the appropriate appeals court. . . .

Also, an amusing tidbit: "In their correspondence, neither Justice Breyer nor the lawmakers mentioned the identity of the keynote speaker at the American Constitution Society's gathering. It was Justice Breyer."

Reader Pat Birmingham points to this table of state marriage statutes, including the age requirements (which tend to be 18 without parental consent, 14 to 16 with parental consent, and in a couple of instances 12 for girls, though that might require judicial consent, too -- I can't tell just by looking at the table).

Tyler Cowen requests an invitation to join the Ranks of the Shrill, over the tightening of the Cuban embargo.

It might be that after John Kerry makes himself more visible we'll see some rallying around Bush. But in the meantime, one wouldn't say that Bush's natural base is sounding very enthusiastic about him or his major decisions or his decision-making procedures these days.

I've never cast a vote for a major-party candidate for President. To the best of my recollection I've never even cast a vote for a major-party candidate for the Senate or for a governorship. And in some important ways my natural affinities lie to the right rather than to the left, especially among academics, journalists, and politicos. (That is to say, my affinities really do not lie with the grassroots right, where social conservatism reigns.) But, assuming Kerry doesn't pick Gephardt or resume his trade-bashing noises, I'm steeling myself to cast a major-party presidential vote this November.

I know a lot of Libertarians are leaning Democratic this year because they oppose the Iraq War. I'm leaning that way in part because I supported it, and thought it was a truly important project. Some combination, or some complicated interaction, of terrible incompetence; an absolute prioritization of political over policy considerations; and a serious contempt for outside, contrary, disinterested, or expert opinion have made a serious mess of Iraq, trade policy, fiscal policy, and much else besides.

I dislike Kerry. I've disliked him for fifteen years; in New Hampshire we had plenty enough exposure to him to leave me sick of him a long time ago. And, man oh man would I prefer to be supporting a pro-Social Security privatization, pro-voucher, pro-tax cut incumbent president who was serious about fighting the war on terrorism and democratizing the Middle East and who might appoint Supreme Court justices who would enforce a strict reading of the Commerce Clause. Even support for the Federal Marriage Amendment wouldn't outweigh all of that, since the President doesn't play a direct role in amending the Constitution and anyway I feel sure that the FMA will never pass.

But we've had no Social Security reform, no push for vouchers, atrocious incompetence and policy made for the wrong reasons on the important foreign policy questions, protectionism, agricultural subsidies, and a spending explosion. All that's left are a) the tax cuts, which are good but something close to meaningless in the absence of spending cuts; b) a general positioning as "hawkish;" and c) annoyance at various elements of the left who I'd rather not be aligned with and certainly don't want to listen to crowing. (I really don't want Michael Moore to spend four years feeling like, and crowing that, he decided a presidential election.) Those aren't sufficient reasons to outweigh the general inability to govern competently or to make good policy judgments.

This is not a huge problem -- errors always happen -- but I thought it was worth flagging. Ted Frank reports that on page 337 of Clinton's book,

Clinton mistakenly says that Reagan nominated Scalia after the Bork nomination was rejected. "President Reagan then nominated Judge Antonin Scalia, who was as conservative as Bork, but hadn't said and written as much to prove it."

The problem here isn't just the chronology -- Scalia was nominated before Bork. It's also that Scalia was widely known to be a conservative legal scholar (and a conservative federal court of appeals judge), who had written and said lots of things that showed his conservatism.

As Mickey Kaus has pointed out, every time Kerry starts campaigning, his poll numbers plummet ... But he's got a lot of surrogates campaigning for him. There's Michael Moore, who has said he hopes more Americans will die in Iraq. His movie, "Fahrenheit 7/11" as we call it, apparently supports the [New York] Times' view that life in Iraq was better, sunnier, happier under Saddam Hussein. Moore has also accused the American people of being the stupidest, most naive people on the face of the Earth. And after last weekend, he's got the box office numbers to prove it!

Can any readers point to Moore's saying that he hopes more Americans will die in Iraq? If you have a specific quote that expresses this view (with a citation or, better yet, a URL), please e-mail it to volokh at law.ucla.edu. I'm genuinely not sure whether or not he did; Ms. Coulter may well be mistaken on this. Thanks!

UPDATE: Ted Frank points to this: "I oppose the U.N. or anyone else risking the lives of their citizens to extract us from our debacle. I'm sorry, but the majority of Americans supported this war once it began and, sadly, that majority must now sacrifice their children until enough blood has been let that maybe — just maybe — God and the Iraqi people will forgive us in the end." Earlier in the item, he says "The Iraqis who have risen up against the occupation are not 'insurgents' or 'terrorists' or 'The Enemy.' They are the REVOLUTION, the Minutemen, and their numbers will grow -- and they will win."

Hmm; doesn't quite sound like hope that more Americans will die in Iraq (note the "sadly," plus the "must" seems to refer to what he sees as the inevitable consequences of the Administration's policies, rather than what he would like to see happen). On the other hand, it's quite clear that he wants us to lose, and some very bad people to win. But in any event, I'm not at all sure that this is what Coulter was referring to.

No hint of litigation about this yet, but it makes for an interesting hypothetical question (assuming Slate didn't get a copyright clearance) -- check out this Slate "Juicy Bits: We read the book so you don't have to" column, and compare it to the situation in Harper & Row v. Nation Enterprises (1985). Not an identical case, of course; for instance, the excerpts here are from a published book, rather than a yet-to-be-published book. Still, it seems like an interesting fair use issue.

Reader David Gil points to this item in Slate's Corrections column:

After receiving a complaint from the publisher that a June 22 "Juicy Bits" article on My Life by Bill Clinton infringed on the book's copyright, Slate removed the piece on the advice of counsel.

I've gotten lots of e-mail about the Zarqawi story (see posts here and here) that has asked, more or less, why I would ever believe anything from the mainstream media with its obvious anti-Bush bias. I've responded, over and over again, that I know the rules reporters for major mainstream American news sources work under, and that if an NBC reporter claims to have "Pentagon sources" for a claim, then he does have such sources.

But, amidst all the media bias e-mail, an important question hasn't been asked, one that doesn't require us to disbelieve the reporter at all.

Military officials insist their case for attacking Zarqawi's operation was airtight, but the administration feared destroying the terrorist camp in Iraq could undercut its case for war against Saddam.

That's all that's said about the most explosive version of the case. "Military officials" told Jim Miklaszewski that the NSC killed the plan because destroying the camp could remove a pillar from the case for the war.

How do they know what the NSC's motives were?

Since the report came from a TV network and not from the Times or the Post, it lacks the elaborate code telling us what rank the military officials hold and how close they were to the key meetings. It could be that the sources were involved in drawing the plans up, but very far from the NSC decisionmaking about what to do with the plans. They considered their case "airtight," and when the NSC said no, they imputed bad motives to the NSC.

NBC would have told the truth; it doesn't place the officials at the meeting. The officials would be telling the truth as best they understand it. But the underlying charge still might not be true.

Conversely, maybe the military officials do have good information on what was said at the NSC; maybe they were in the room. Or maybe Roger Cressey, quoted elsewhere in the article and still in the White House (though no longer on the NSC staff) by the time of some of the relevant meetings, knows what went on. But the report really isn't clear enough on how the Pentagon staff whose plans were rejected know why they were rejected. As it stands, the charge could be a kind of bureaucratic sour grapes.

Of course, the officials quoted might be falsely imputing motives without the real motives being adequate or sufficient. But how much evidentiary weight do we put on these Pentagon sources? I don't know, because Miklaszewski doesn't tell us how they would know what they claim to know.

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

Natelson urged the regents to admonish the Law School "to reassess its policies and practices to assure that faculty members of all viewpoints receive equal opportunity and treatment in hiring, promotion, work practices, merit pay and faculty awards, and that there is greater viewpoint diversity among faculty."

In addition, he asked the regents to order the Law School to file "a plan of affirmative action (but not preferential hiring) to assure that the goals of equality opportunity, equal treatment and intellectual diversity are met." This may include, he said, "reassessment of intellectual political bias, faculty sensitivity training and basic education in federal and state provisions against illegal discrimination." . . .

Natelson said he's been punished by the Law School in several ways. His requests for merit pay increase have been denied, he said, and his applications to teach constitutional law have been spurned four different times after professors teaching the course have left the school. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . . .

I'm not sure whether politically based teaching assignment decisions would indeed be unconstitutional -- the question of a university's power to control the content and viewpoint of the classes that it offers turns out to be a complex and, in my view, unsolved First Amendment issue. Moreover, since it would be very hard for a university to control class content directly (for instance, by reviewing each professor's lesson plans, or monitoring what he says in class), the university might plausibly argue that such control, if it's constitutionally permissible in the first place, can be done by considering a professor's ideology in deciding which classes to assign him to teach.

I'm also not sure whether Prof. Natelson's claims are factually accurate (and I'm sure that I won't invest the huge amount of time needed for me to decide this for myself).

Still, if Prof. Natelson's claims are factually accurate, then this would show a serious professional failing (whether or not it's also a legal failing) on the law school's part. I do hope the matter gets more closely investigated.

As regular readers know, I have done a fair amount of blogging about statutory rape laws over the course of the last year or so, and I have come to advocate what is essentially a descriptive approach to the law of statutory rape. That is, I think that the age of consent ought to correspond to teenage behavioral norms rather than attempting to prescribe them. To set the law up in this area in any other fashion basically criminalizes otherwise consensual sexual behavior that is not statistically aberrant.

For example, an Alan Guttmacher Institute paper indicates the following percentages among teenage females (where the % indicates sexual intercourse):

Age 15: 24%

Age 16: 39%

Age 17: 52%

Age 18: 65%

The percentages for teenage males are not dissimilar. But I assume that the female percentages are the ones that really matter in this debate, as statutory rape prosecutions most often involve female victims. Likewise, concerns about the poor judgment of teens and the possibility of adults preying on them always seem to be primarily directed towards female teens.

Of course, even from the foregoing data, one might dispute what age/percentage correlation is sufficiently high to serve as the basis for the age of consent. It seems to me though that rather large numbers of teens are engaging in sexual intercourse by the ages of 16 and 17. And, it's important to remember that the foregoing statistics apply solely to "sexual intercourse." If other sexual activities are accounted for, those percentages may rise significantly.

Admittedly, this descriptive approach may run into more difficulty in serving as a basis for "Romeo and Juliet" provisions that typically exist within statutory rape laws (i.e., the provisions that provide that, even when one of the participants has not reached the age of consent, there is no rape so long as the other participant is within a certain range of years). However, there is data on this as well. The aforementioned Guttmacher study reports that:

Nearly two-thirds (64%) of sexually active 15-17-year-old women have partners who are within two years of their age; 29% have sexual partners who are 3-5 years older, and 7% have partners who are six or more years older.

So, one can make a good case, I think, for fairly narrow "Romeo and Juliet" provisions, particularly if one is contemplating a lower age of consent. No one, I suspect, has a problem with prosecutions of the sort detailed in this Houston Chronicle article. However, a narrow age-range for "Romeo and Juliet" provisions does produce some questionable prosecutions with unexpected frequency (e.g., cases involving two teens). Though even cases involving only teenage participants are themselves not easily characterized on occasion.

Personally, I am less and less persuaded by prophylactic arguments directed at teenage wisdom. Increasingly, in the criminal justice system, we are willing to attribute a high degree of sophistication and culpability to minors (i.e., treating juveniles as adults). Statutory rape laws head in the exact opposite direction. I find it somewhat difficult to reconcile the two trends. Others hve offered additional reasons for questioning the paternalism that lies behind statutory rape laws.

The Guttmacher study does admittedly provide statistics that might be are cause for concern regarding pregancy and STDs among teens, two oft-cited rationales for enforcing statutory rape laws. However, my hunch is that concerns about pregnancy and disease can be better addressed via sex education rather than through a legal prohibition that teens themselves already apparently disregard in large numbers.

Interesting; as I mentioned, I don't endorse any of the items I post, but this seems detailed, thought-through, and worth considering.

But to what extent should the law track practice? Say there are a lot fewer 30-year-olds having sex with 16-year-olds than 18-year-olds having sex with 16-year-olds. Is that by itself that much of a reason for treating the 30-year-old and the 18-year-old differently? (Just questions that I thought might inform reader's thoughts, or future submissions; please don't respond specifically to those questions, except in the context of a broader post.)

I'll post one or two more items on this today, and save others for tomorrow and next week.

Several people, including Juan and Mike Rappaport (The Right Coast), suggested that I needn't worry about the litigation as military tactic by 50,000 detainees scenario, because Congress could still statutorily strip these detainees of the rights to petition for habeas. This would not be a suspension of the constitutional right to habeas corpus (which isn't allowed except in cases of invasion or rebellion), but rather a denial of habeas to people -- enemy aliens detained outside the U.S. -- who have only a statutory habeas corpus right, not a constitutional one.

How would this work? Well, remember that all of us can have three kinds of rights: (1) Constitutional rights, which are secured by the Constitution itself, and which can't be taken away by Congress (except when the Constitution specifically authorizes it, as with suspension of habeas during rebellion or invasion). (2) Statutory rights, which are granted (I speak here of legal rights, not moral rights) by statute, and which can be taken away by statute. (3) Common-law rights, which flow from judicial decisions, but which can be taken away by statute.

To give one non-habeas example, if the police illegally wiretap us, we might have a common-law claim of invasion of privacy against the police officer, a statutory claim under laws that restrict wiretaps, and a constitutional claim for violation of the Fourth Amendment. Our statutory and common-law rights may actually be broader than our constitutional rights (and, as to the wiretaps, the statutory rights are indeed broader). This might mean that when we sue based on the wiretap, the court might not even have to decide the scope of our constitutional rights, if it's clear that our statutory rights were violated. But the statutory and common-law rights may be repealed by legislative action; the constitutional rights can't be.

In Johnson v. Eisentrager (1950), the Supreme Court held that German soldiers caught by the Americans in China, and detained in Germany, didn't have either a statutory or constitutional right to habeas corpus. The statutory issue took little space; the Court concluded that the statute authorizing habeas petitions basically only gave jurisdiction to judges in the district where the person was being detained. This was an extension of Ahrens v. Clark (1948), which held the same, but specifically reserved judgment on whether this rule applied when the person was detained outside any judicial district (such as on a military base in Germany); Eisentrager essentially concluded that the rule did apply there, and there was no statutory right to habeas.

The Court then went on to conclude that the enemy detainees didn't have constitutional rights to habeas (or the rights of the Bill of Rights), either.

In the Guantanamo case (Rasul v. Bush), the Court said that -- because of more recent developments in the Court's interpretation of the habeas statute -- the Guantanamo detainees did have statutory rights to habeas. It therefore didn't have to explicitly decide whether they had constitutional rights to habeas. So it's possible that Congress could, if such habeas petitions prove too burdensome, limit the habeas statute to exclude them. That would then require the Court to answer the question whether such enemy detainees do indeed have constitutional habeas rights, and not just statutory ones.

That's a plausible argument -- but here's why I'm skeptical, and why I think that the Court's ruling may lead the Justices (and lower courts) to actually conclude, in my view wrongly and dangerously, that enemy detainees do have the constitutional right to habeas corpus review, and thus can continue to use litigation as a military tactic.

1. To begin with, just to make clear, the Court did not preclude the possibility of such a constitutional right. It didn't hold there was such a constitutional right (it only said there was a statutory right), but it didn't hold the opposite.

2. More importantly, the Court went out of its way to cast doubt on the broad applicability of Eisentrager (which, recall, is the case that did reject a constitutional right). For its purely statutory holding, the Court could have limited its treatment of Eisentrager to the purely statutory point: Recent cases have led the Court to interpret the statutory habeas provision more broadly than it was interpreted during the Eisentrager era (that's the argument captured in the Court's statement that "Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of [habeas] jurisdiction over petitioners' claims"); and since Eisentrager talked very little about statutory habeas, there's no reason to discuss Eisentrager further.

But the Justices didn't just do that; they began by distinguishing Eisentrager on the facts:

In reversing that determination [of a constitutional right to habeas], this Court summarized the six critical facts in the case [Eisentrager]:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears."

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Only then did the Rasul majority go on to say "Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: 'Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'" And then the Court continued with its statutory analysis.

This strongly suggests to me that the Court is trying to limit Eisentrager's constitutional holding to a situation where some number (maybe all, maybe most, maybe some) of the Eisentrager factors are met. And if that's so, then there might indeed be a constitutional right to habeas in my hypothetical.

3. Also, while the Court is saying that its holding is statutory, actually its holding is much more common-law-like. Habeas law has generally been developed by judges, with relatively little participation by Congress (though in recent years the Congress has cut back in some measure on repeat habeas claims by criminals). The broadening of statutory habeas that the Rasul Court focused on was done not by Congress, but by the Court itself. So the Court may formally be interpreting the statute, but it is actually making a sort of statutory common law that has little to do with specific Congressional commands.

This isn't itself illegitimate, it's part of our habeas tradition, and the Court has done this in many other areas (such as antitrust law, or, historically, copyright fair use law, or evidentiary privilege law under the Federal Rules of Evidence). And such common-law decisionmaking might be supersedable by contrary Congressional statutes.

But it's important to realize that here the Court is exercising its own policy judgment, not just saying "Congress said we should do this, so we'll do this." The Rasul decision thus represents the Court's own views of sound habeas policy -- and, coupled with what I said above in item 2, it suggests that the majority might well apply the same views to the question of what habeas relief is constitutionally required.

Recall the key arguments made by the Court in Eisentrager as support (not the only support, since the Court also stressed history and other factors, but as a major support) for its decision (some paragraph breaks added):

To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence.

The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except in England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown. . . .

That was the heart of Eisentrager's constitutional argument, but it is an equally strong prudential argument against recognizing, in common-law fashion, a hitherto unrecognized statutory habeas right. But the Rasul majority obviously didn't buy this. This suggests that they won't buy the Eisentrager constitutional argument in a constitutional habeas case, either -- and that the logic of their case might thus suffice to overrule or at least limit to its facts (again, see item 2 above) Eisentrager's constitutional holding.

* * *

So these are my attempts to respond to the very thoughtful points raised by Juan and Mike (see links at the start of this post). I recognize that indeed the Court might eventually hold that the enemy detainees in my hypo don't have a constitutional right to habeas, and that Congress can thus deny them habeas review if it thinks that such review would be too burdensome. I also recognize that some may argue that such review might not be that burdensome (if the Court concludes that lower courts can summarily deny habeas if the military provides even very slightly, purely military process to those who claim they're wrongfully detained). And I recognize that some may argue that, no matter how burdensome the review is -- how effective mass habeas petitioning may be as an enemy litigation tactic -- that's a price that we have to pay, to protect the rights of the alleged enemy combatants.

But I think that, largely for the reasons that Eisentrager gives (though with less focus on transportation, given modern technology), Rasul does indeed risk substantially hampering our military effort, and strengthening our future enemies' military effort. And I'm not at all sure that Congress can avoid this burden simply by limiting statutory habeas for enemy detainees to the constitutionally required minimum.

Went to see the movie yesterday afternoon with someone known to you all. Loved it. It was pretty close to (though not quite) pitch-perfect as a movie. It included lots of easter eggs for the geeks (Stan Lee! "Spider-Man No More" complete with the cover shot reproduced exactly! The Doc Ock denouement! The cartoon "Spider-Man" theme song!) without letting them get in the way; it probably included more shots than even Daredevil did that were lifted precisely off the page, but here they were actually integrated into the movie. Wonderful performances all around. Kirsten Dunst is just right; she has the right kind of looks to be the idolized-from-afar daydream billboard ad without the passivity that could go with those looks.

I'm really not thrilled with the telegraphed direction of the third movie. Of the three possible villains they've got kicking around, they seem inclined to go with by far my last choice. And I think it will be very tough to top Alfred Molina's Doctor Octopus, either in his performance or in the effects. (Vastly better than the lame suit of armor they put Willem Dafoe into as the Green Goblin.) But I should have a little faith, since things have gone so well so far.

So I've been thinking -- purely for academic reasons, I hasten to stress! -- about statutory rape laws. There's broad agreement that sex with people who are too young is wrong, and should be illegal, because children aren't mature enough to consent to sex.

But there's vast disagreement about what the proper cutoff age will be. California law prohibits pretty much all sex with under-18-year-olds. But (according to this source, seemingly created by people whose motivations may not coincide with mine, but which appears to be relatively accurate), California is in a tiny minority on this score: Only 6 states have a categorical age of consent of 18. (I set aside the special issue of sex between married couples; in most states, I believe, people can marry, at least with parental consent, before 18, and can then have sex.) Maybe the 18 cutoff is right, but it seems to me hard to say, given this, that it's the obviously right one.

What's more, Canada -- not generally thought of as a much lewder country than the U.S. -- has an age of consent of 14 (though perhaps some provinces set it higher; I'm not sure). It's 14 in many European countries, and flat 18 (or higher) thresholds seem to be unknown in any Western nations.

Now in some states and countries, there's a lower threshold for sex among young people: Sex with under-16-year-olds may be categorically banned, for instance, but sex with under-18-year-olds may be legal if the age difference between the parties is no more than, say, four years. But, as I said, the categorical illegal-to-have-sex-with-under-18-year-olds position -- which is the one that's most consistent with the "they lack the legal power to consent" theory -- is very much a minority. And in the U.S. a flat 16 cutoff seems to be the norm. Of course, that too could be wrong, and 18 could be better the rule.

So here's my question: What should the rule be, at least within American states, and what are the most cogent arguments that support it? I'm not asking what the constitutional rule should be; I'm also not asking, at least directly, what's likely to prevail politically. I'm asking what the right policy approach will be.

But this policy approach should take into account real human behavior (of the teenagers, of their prospective partners, of parents, of police, of prosecutors, and so on), and not just a perfect theoretical world. So one might want to consider:

The risk of physical harm from sex, such as pregnancy or sexually transmitted diseases.

The risk that teenagers who really aren't very mature will end up being emotionally and developmentally hurt.

The possibility that sex among teenagers is less likely to be manipulative or exploitative (whatever exactly that means) than sex between an older adult and a teenager -- and the possibility that this is a myth, and that 16-year-old boys are as likely to (or more likely to) want to and be able to exploit 16-year-old girls as 40-year-old men would be.

Whatever moral claims to making their own decisions you think the teenagers would have.

The possible harms and benefits of having a law that is vastly underenforced, and that is enforced when the prosecutor decides the case is especially egregious (and when other circumstances, such as unwanted pregnancy or parental complaint, bring the case to the government's attention).

And more.

Let's set aside, as I mentioned, the special case of sex within marriage. Let's also set aside sex among family members (blood or otherwise), or high school teachers having sex with students and the like. Also, note that I see "teenager" for convenience; one might certainly argue that the age of consent should be below 13, though I doubt that this will fly.

If you're interested, please submit (to volokh at law.ucla.edu) a concise but thought-through, detailed, and proofread argument for what you think is the right position. I promise to be quick about posting these items; I'll be able to do that because I won't have to aggregate the results, or decide whether I endorse the argument or not. I want to post interesting and thoughtful arguments, whether I think they're right or not. (And, yes, I will eventually post the results of the Ancient Rome question, but since I do have to aggregate and screen that, it's been on the back burner.)

Note, though, that I don't expect to post all or even most of the responses; please forgive me if I don't post yours (whether because I think it's a bit duplicative of others', or not specific enough, or some such). If you post on this and want me to link to your post, please e-mail me both the permalink URL and the text of the post; if I use it, I'll then include the text and also a link. If you don't want your name to be used in my post, please say so.

[Nader]said that while representatives of an antitax group encouraged Republicans to attend a meeting last Saturday in Portland, Ore., to help him collect 1,000 signatures, he said Democrats were "infiltrating" the same meeting merely to block other supporters from getting in.

Mr. Nader said Democrats crowded into a meeting hall, kept other people out and gave the false impression that they had signed petitions for him. Democratic officials did not dispute Mr. Nader's account. "I felt it as my obligation due to the dirty tricks that the far right were doing to stack the seats at that convention," said Moses Ross, communications secretary for the Multnomah County Democratic Party. "I felt obliged to encourage our Democrats to do something about that."

So let's see. Republicans want Nader on the ballot to take votes from Kerry, so they go to a meeting to sign petitions for him. Sneaky, yes, but not interfering with anyone else's rights. The Democrats respond by flooding the meeting room to prevent both Republicans and anyone else from signing the petitions. This strikes me as beyond the ethical (and, depending on the details of "kept people out," perhaps legal) pale, as it prevented others from exercising their constitutional right to assemble, and was intended to do so. Someone, at the very least, owes Mr. Nader and his supporters and apology.

Alan Greenspan receives a tremendous amount of adulation. I may be wrong but (1) I think that Greenspan, along with other central bankers, caused the great stock market bubble of the late 1990s, by opening the money supply spigots to fend off problems stemming from the collapse of Long Term Capital Management and the Russian bond default; and (2) when the bursting of that bubble threatened to cause a severe contraction, the money supply was increased again, with inflationary pressures this time going into a bubble housing market, which has ballooned from Sydney to New York. (Here in the D.C. area one hears that prices are going up due to building restrictions, hiring at the Department of Homeland Security, and immigration, but this doesn't explain why London, Sydney, Boston, L.A., Toronto, etc., have all had similar price distortions increases, nor why housing prices even outside big cities are at all-time highs by many measures.) I foresee this bubble ending badly, too--not nearly as badly as the Nasdaq bubble for owners of housing, but perhaps a lot worse for the economy as a whole.

UPDATE: Coincidentally, just noticed that the Times has a story about Greenspan critics today.

Today's Washington Post has a nice piece on my law school's "Clinic for Legal Assistance to Service Members." Acting Dean Dan Polsby:

It's not exactly a secret that the culture of higher education in America is anti-military. We're a little different in the law school. We're near the Pentagon, with a lot of military and naval officers in our student body. I just don't think we drink very deeply from the same cultural springs that some of our brother and sister schools drink from.

If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. . . .

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. . . .

Of course, the Revolution was conducted by trained professionals, boys and girls -- don't try this at home.

What does it take to convict an expert witness of perjury? Well, according to the Ninth Circuit (over dissents from O'Scannlain and four others), ruling last week, it's not enough to catch the expert passing himself off in testimony as a specialist in orthopedic surgery when his actual residency was in physical medicine and rehabilitation. Very curiously, the Ninth Circuit judges decided that the misrepresentation was not material to the jury's reception of Dr. Edmund Y. Chien's testimony -- even though he was testifying on a plaintiff's future need for orthopedic surgery -- and thus, on a habeas corpus petition, overturned his California state court perjury conviction.

As the dissent pointed out, "If two doctors gave me conflicting diagnoses about my need for invasive orthodpedic surgery, I know that I would be more inclined to trust the opinion of the actual orthodpedic surgery specialist."

Also from his First Inaugural Address; agree or disagree -- and in practice our legal and political system has generally rejected Lincoln's view -- it's eloquent and thought-provoking (paragraph break added):

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Wednesday, June 30, 2004

I just read the Address for the first time -- too bad that it took me so long -- and thought the closing paragraph was quite moving:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

-- in his capacity as head of the Judicial Conduct and Disability Act Study Committee -- to complain about Judge Calabresi's remarks. Here's the letter. Seems like overkill to me, especially given the Judge's apology, but I thought I'd pass along the Congressmen's opposite view.

Liberty & Power on a Roll!:
WOW! Liberty & Power has added a host of interesting "Contributing Editors" to its already impressive stable making it a libertarian intellectual powerhouse. I go way back with most of the folks on its roster--in some cases, to when they were students, in others to when I was a student. My congratulations.

Given the stance of most of the Liberty & Power contributors on the "war on terror" in general, and the Iraqi war in particular, the time may be ripe for a full fledged debate on the relationship between libertarianism and foreign policy. It appears that there is an assumption on the part of many libertarian intellectuals that libertarian principles entail a very specific version of "noninterventionism" in foreign policy.

I believe that this is a category mistake, and that noninterventionism (which I favor), and its exact contours, does not follow deductively from libertarian first principles. In other words, two people holding exactly the same commitments to libertarian principles can favor radically different foreign policies. I realize that this is a cryptic observation, but I do fear that the recent anti war vociferousness of some libertarian intellectuals, of whom I have the highest regard and respect, may unfairly tag all libertarians with a very particular set of foreign policy positions about which even radical libertarians actually differ.

I confess that my instincts here are driven by the fact that I disagree sharply with the anti war stance of these libertarians, and they with me, but I do not believe my libertarian principles, or my commitment to them, have changed in the slightest. Because I think neither has theirs, something other than libertarian first principles are at stake. About all this I am open to reasoned argument. I have not given this matter any sustained or systematic thought, but the time may be nigh to do so.

Update: Note that Liberty & Power has now been added to the much-coveted Volokh Conspiracy blog roll at the left!

Michael Moore says the Saudis. Ralph Nader has a different view; I've quoted it here, but reader Duncan Frissell points to this even more explicit reference:

Independent presidential candidate Ralph Nader yesterday courted the Islamic vote by accusing Republicans and Democrats of ignoring the interests of Muslim Americans and describing the Congress and White House as "puppets of Israel." . . .

"The Israeli puppeteer travels to Washington and meets with the puppet in White House. He then goes down Pennsylvania Avenue and meets with the puppets in Congress," said Mr. Nader. The Israeli leader then "brings back millions of dollars" in aid to Israel, he said.

So which of these reliable worthies is right? Or could it be both, perhaps with the Queen of England (Lyndon LaRouche's bete noire) thrown in for good measure?

[An ACLU] lawsuit filed Tuesday challenges a new state law that effectively bans nude summer camps for teenagers, saying it violates the constitutional right to privacy. . . .

The law was passed in March in response to a weeklong residential camp for 11- to 18-year-olds last June at White Tail. . . .

"Legislators overreacted and in the process they substantially interfered with the right of families to make lifestyle choices," Virginia ACLU executive director Kent Willis said. "Using the overall logic of this law, legislators are now free to prevent children from swimming, playing baseball or riding a bus." . . .

Attorney General Jerry W. Kilgore said last year that such camps could attract pedophiles and child pornographers. . . .

I'm generally for giving parents lots of flexibility in how to raise their children. But even if this law is unwise (and I think the Attorney General's argument is not implausible, though I think nonconsensual nude photos via hidden cameras are a more likely risk than true child porn, which requires photographing lewd nudity, not just nudity as such), I really doubt that the Constitution protects such a right. And the fact that it's talked about as a matter of "privacy" just shows what a malleable and ultimately unhelpful word "privacy" has come to be.

Clayton Cramer has more on this, though I don't entirely agree with his analysis.

In the 1990's, nothing made conservatives look more petty and simple-minded than their demonization of Bill and Hillary Clinton, who were even accused of spending their spare time killing Vince Foster and others. Mr. Clinton, in other words, left the right wing addled. Now Mr. Bush is doing the same to the left. For example, Mr. Moore hints that the real reason Mr. Bush invaded Afghanistan was to give his cronies a chance to profit by building an oil pipeline there.

"I'm just raising what I think is a legitimate question," Mr. Moore told me, a touch defensively, adding, "I'm just posing a question."

Right. And right-wing nuts were "just posing a question" about whether Mr. Clinton was a serial killer.

I'm against the "liar" label for two reasons. First, it further polarizes the political cesspool, and this polarization is making America increasingly difficult to govern. Second, insults and rage impede understanding. . . .

Eugene's Scenario and Suspending Habeas Corpus:
I rarely disagree with Eugene. Nonetheless, I am not convinced by his argument Congress could not suspend habeas to prevent the filing thousands of writs by enemy detainees in U.S. hands on foreign soil in his Monday hypothetical. As Eugene notes, the text of the Suspension Clause provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." A foreign war, while perhaps important for national security is neither a case of "rebellion or invasion," so that settles it, right? Not necessarily. Article I, section 8 of the Constitution provides for the creation of "Armies" and a "Navy," but no one seriously contends that this makes the Air Force illegal. The textual provisions clearly provide for the provision of the armed forces, and this settles the matter. Could not one analogously argue that the Suspension Clause authorizes suspension in times of dire national emergency?

Justices Scalia and Thomas both address this issue in their respective Hamdi decisions, both concluding (for different reasons) that Congress has the power (if not Constitutional authority) to suspend the writ where necessary. Justice Scalia, in defending his position (with which I agree) that the federal government must either prosecute Hamdi for treason or seek suspension of the writ of habeas corpus, argues that the textual limitation is no obstacle:

To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court.

(Scalia, J., dissenting, p. 26). He further argues that

It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.

(Ibid, FN6).

Justice Thomas objects to Scalia's position noting, as did Eugene, the textual predicate for suspension would seem to exclude foreign wars and other situations in which providing for writs of habeas corpus for enemy combatants could cause serious problems. Thus "Congress would then have to choose between acting unconstitutionally and depriving the President of the tools he needs to protect the nation." (Thomas, J., dissenting, p. 16). Yet Thomas then proceeds to agree with Scalia that the Supreme Court "could not review Congress' decision to suspend the writ" (Ibid., FN4). Therefore, as a practical matter, Congress could suspend the writ to address Eugene's scenario, even if it would be, in some sense, "unconstitutional." Nonetheless, Justice Thomas finds this objectionable because "the power to protect the nation must be the power to do so lawfully."

Justice Thomas makes another point worth mentioning. He argues that if the treatment of certain detainees is unconstitutional, it is not suddenly made constitutional by suspending the writ of habeas corpus. The detainees are denied a legal remedy, but the constitutionality of their treatment remains unchanged. I agree. But the difficulties of Eugene's scenario are not predicated on the U.S. military treating the detainees in an unlawful or unconstitutional manner. To the contrary, the difficulty arises from the need for the courts to hear, and the military to respond to, the thousands of habeas petitions. This burden remains no matter how well the detainees are treated.

While I tentatively disagree with Eugene's bottom line on the suspension of habeas - Congress could do it if the situation required - I nonetheless believe the decision in Rasul was misguided. The fact that Congress and the President would potentially have to act in an unconstitutional manner to address such a scenario suggests the ruling is unwise. Moreover, the fact that the text of the Suspension Clause only makes reference to threats arising on domestic soil reinforces the Rasul dissenters' argument that writs of habeas corpus are not available to enemy combatants detained outside of U.S. territory. But that is not what the Supreme Court decided, so (for the time being) we'll have to live with it.

I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.

Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!

[Nader]: The subservience of our congressional and White House puppets to Israeli military policy has been consistent. . . .

[Buchanan]: You used the term "congressional puppets." Did John Kerry show himself to be a congressional puppet when he voted to give the president a blank check to go to war?

[Nader]: They're almost all puppets. There are two sets: Congressional puppets and White House puppets. When the chief puppeteer comes to Washington, the puppets prance.

[Buchanan]: Why do both sets of puppets, support the Sharon/Likud policies in the Middle East rather than the peace movement candidates and leaders in Israel?

[Nader]: . . . The answer to your question is that instead of focusing on how to bring a peaceful settlement, both parties concede their independent judgment to the pro-Israeli lobbies in this country because they perceive them as determining the margin in some state elections and as sources of funding. . . .

Which Justices Have the Broadest (and Narrowest) Views of Free Speech?

I've just updated my Excel spreadsheet of the Justices' votes in free speech cases to include 1994 to 2003 -- 10 years in which the Court's makeup has remained the same. Here are the results, with the Justices ranked from having the broadest aggregate view of free speech protection to the narrowest aggregate view.

Ranking, from most speech-protective (#1) to least (#9)

Justice

Score, out of 57 cases

#1

Kennedy

39

#2-3 (differences of <1 point treated as ties)

Souter

32

#2-3

Thomas

31.7222

#4

Stevens

29.6667

#5

Ginsburg

28.5

#6

Scalia

25.4167

#7-8

O'Connor

21.5

#7-8-9

Rehnquist

21.1667

#8-9

Breyer

20.5

For (1) a description of my method, (2) an explanation of why it makes some sense to look at Justices' overall votes on a wide range of free speech issues, and (3) an acknowledgment of the limitations of such aggregate results, see here.

As I stress in the article I cite to, I don't want to overstate the importance of such aggregate data. Still, many laypeople, journalists, and even scholars do make generalizations about the Justices (e.g., Thomas is a conservative and therefore has a narrow view of free speech, Breyer is a liberal and therefore has a broad view), and there is some value to such generalizations. If such generalizations are made, they should at least be accurate.

The Excel spreadsheet is still tentative; I'd love to hear any corrections that people might have. But before e-mailing me any proposed changes, please (1) make sure you've read my scoring method, (2) make sure you've recently read the case, and (3) tell me specifically which scores you think should be changed, and why.

Also, remember that I'm not counting whether I think the Justices reached the right result -- only whether they reached a more or less speech-protective result (and speech-protective in a pretty narrow sense, focusing on speech restrictions by the government and not on the effect on the overall level or quality of public speech).

The Ashcroft v. ACLU majority concludes that filters may well be a less speech-restrictive but equally effective alternative to the restrictions that the Child Online Protection Act imposes. That's why the Court effectively strikes down the Act. (The Court technically just upholds the preliminary injunction as not an abuse of the trial court's discretion, but it's clear that the Court agrees with the trial court on the merits; and though the Court remands for more factfinding, it's hard to see how more factfinding will really satisfy it.) Here's the Justices' argument:

A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. . . . The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives. . . .

Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. . . . First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. . . . In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. . . . Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web. . . .

That's correct in one way: Indeed, given the choice between (1) having only COPA (which would require commercial providers of obscene-as-to-minors material to put it behind credit-card checks or other proxies for age verification) and (2) having only the alternative of filters, option 2 is the best solution.

But I don't think that's the right analysis. If the "purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal" ("to assure that legitimate speech is not chilled or punished" unnecessarily, which must be what the Court is referring to), then the comparison must be between (1) having both COPA and filters and (2) having only the alternative of filters. If COPA and filters do a better job of serving the compelling interest in shielding children from sexually explicit material (and the majority didn't dispute that the interest was compelling, as the Court held in the past) than just filters, then COPA is necessary to get that extra level of protection.

Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify "[a]ny restriction on speech," as the Court claims, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)

The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the "child protection" problem. It suffers from four serious inadequacies that prompted Congress to pass legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance. . . .

Second, filtering software costs money. Not every family has the $40 or so necessary to install it. By way of contrast, age screening costs less. . . .

Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. . . . .

Few parents, even the best parents, so closely supervise their children and the children's friends that they know whether the computers at the friends' houses have filtering software installed (and installed securely enough that the children's friends can't easily circumvent it). Their children will at some point have access to an unfiltered computer. COPA would thus provide those children an extra level of shielding beyond what filters alone could do.

Now this doesn't mean that Justice Breyer is right on the bottom line. Perhaps the extra protection that COPA provides is too small to be worth the free speech cost. Perhaps on balance filtering alone will be more effective than COPA plus filtering because COPA will lull so many parents into a false sense of security that they'll stop using filtering. Perhaps Justice Breyer underestimates the free speech cost (I think he does, and I hope to blog more about that later). Perhaps the Court has been wrong in assuming that shielding children from sexually explicit speech is a compelling interest, or at least compelling enough to justify burdens on the ability to communicate to adults.

But I think Justice Breyer is right in the particular criticism he makes of the majority. By its formulation of the test, the majority is trying to make it seem like the restriction is unnecessary, and in fact not even beneficial (when compared to the easy alternatives). That makes the majority opinion look like it's giving the public the best of both worlds: It's protecting speech without really sacrificing any shielding for children.

Yet there's little reason to think that this is indeed so. More likely, the majority opinion does indeed in some measure diminish the level of shielding that children are likely to have.

That may well be right — we might have to sacrifice some shielding of children from sexually themed material, in order to protect free speech. But Justice Breyer is right that the majority is wrong to suggest that no such sacrifice is taking place here.

For more on this sort of mistake, by the way, which the Court also committed in Reno v. ACLU (1997), see this article of mine.

David Meyer has a very thorough rundown and chronology. It includes the passages from a Greg Miller LA Times article from February of 2003-- a full year before the NBC story.

[l]awmakers who have attended classified briefings on the camp say they have been stymied for months in their efforts to get an explanation for why the United States has not begun a military strike on the compound near the village of Khurmal.

Absent an explanation from the White House, some officials suggested the administration had refrained from striking the compound in part to preserve a key piece of its case against Iraq.

"This is it. This is their compelling evidence for use of force," said one intelligence official, who asked not to be identified. "If you take it out, you can't use it as justification for war."

Sen. Dianne Feinstein, D-Calif., a member of the intelligence panel, said she and other members had been frustrated in their attempts to get an explanation from administration officials in closed-door briefings.

"We've been asking this question and have not been given an answer," Feinstein said. Officials have replied that "they'll have to get back to us."

Asked whether the White House might have rejected hitting the site to avoid complicating its efforts to build support for war against Iraq, she said: "That's an obvious thought. I hope not."

Tom Veal points out that there was at least one public response to the NBC story in March, from Assistant Secretary of Defense for International Security Affairs Peter Rodman, under Congressional questioning.

I do know something about the planning. We had our eye on that location, Kirma. But I'm not sure I agree with the characterization of the decisions that were made. Any kind of operation is complicated. And I do know that we had our eye on that location. There were discussions in the administration. And obviously no attack was made.

But I don't recall anyone discussing on either side of the discussion anyone saying, well, no, we don't want to do this because it will interfere with a plan to go after Saddam. I mean, you could have made the opposite argument that it would — if we had found something interesting there, it would have — could have strengthened our case.

This isn't a particularly decisive denial, even in conjunction with the Rice comments from Sunday. (I'll eventually assemble all this into a single post with links.) But there it is, for whatever you think it's worth.

Sebastian Holsclaw suggests that the issue was diplomatic: while in the midst of building the case for war, it was simply thought to be too sensitive to launch a unilateral strike against terrorists on what was nominally Iraqi territory. I've heard this from a number of other people as well. At first this looks dubious, given that the first Pentagon plan was in June 2002. But it's true that in June we didn't know we were still 8-9 months away from the final UN diplomatic stalemate, and we didn't know there was going to be such a stalemate.

I have to say that I find this only a slightly less bad reason for refraining than the one NBC's Pentagon sources alleged. It still amounts to a prioritization of the large-scale Iraq War over a pre-emptive strike on an al-Qaeda affiliated, ricin-equipped terrorist. And it's not the same as Rice's claim that there was never a moment when we could have been sure about getting Zarqawi. (I'm also going to blog later on about the distinction between the two legitimate targets, the ricin-equipped Ansar al-Islam camp and Zarqawi himself, and what work that distinction does and doesn't do.)

A claim that a number of people have e-mailed me that won't stand up is that there's nothing to criticize in retrospect since at the time we didn't know how bad Zarqawi was. This is false. At the time he hadn't killed as many people, of course; he's had a busy, bloody year. But the camp was referred to, often, in building the case for war, including in Powell's UN speech. There were ricin attacks planned and successfully stopped in Europe. They provided a living, breathing example of the central nightmare scenario: al-Qaeda-affiliated terrorists with unconventional weapons. The U.S. had even tried to cooperate with Hussein to get Zarqawi arrested and extradited when the latter was in Baghdad; the very fact that Hussein refused was cited as evidence of his collaboration with Zarqawi. Both Zarqawi himself and the camp were understood at the time to be very bad, very big deals. It seems to me that any acceptable reasons for not having attacked the camp ASAP must be logistical. And Feinstein, Cressey, Michael O'Hanlon, and the unnamed Pentagon officials are all denying that there were sufficient, or sufficiently-explained, logistical obstacles.

Finally, many people have e-mailed-- and this has the ring of truth to me-- that there might have been a reluctance on the part of the Administration to launch a strike that was heavy on cruise missiles and bombers, given Bush's dismissal of such strikes in the early days after 9/11. (Remembering Clinton's cruise missile strikes against bin Laden's camps, Bush insisted that that was the wrong way to proceed.) But, as became evident in the evtnual attack on the base, that wasn't really what was at issue. There were Kurdish pesh mergas ready, willing, and able to take part in a ground assault, provide that they had some Special Forces and air support.

More to come, including some questions that I'd love to see NBC ask its original sources or some investigative reporter for a newspaper follow up on.

WASHINGTON, DC—In a historic decision with major implications for the future of U.S. participatory democracy, the Supreme Court ruled 8-1 Monday that the American people are unfit to govern.

The controversial decision, the first of its kind in the 210-year history of U.S. representative government, was, according to Justice David Souter, "a response to the clear, demonstrable incompetence and indifference of the current U.S. citizenry in matters concerning the operation of this nation's government."

As a result of the ruling, the American people will no longer retain the power to choose their own federal, state, and local officials or vote on matters of concern to the public.

"This decision was by no means easy, but it unfortunately had to be done," said Justice Antonin Scalia, who penned the majority decision in the case. "The U.S. Constitution is very clear: In the event that the voting public becomes incapacitated or otherwise unfit to carry out its duties of self-governance, there is a danger posed to the republic, and the judicial branch is empowered to remove said public and replace it with a populace more qualified to lead."

"In light of their unmitigated apathy toward issues of import to the nation's welfare and their inability to grasp even the most basic principles upon which participatory democracy is built, we found no choice but to rule the American people unfit to govern at this time," Scalia concluded.

Justices Ginsburg, Stevens and Breyer go unmentioned in the lampoon.

Now I have my disagreements with Justice Scalia, but a refusal to defer to the American electorate or to doubt their competence in nearly all matters is not among them. If effective humor is based on truth, where is the joke--or even the irony--in this? Perhaps some reader can enlighten me on this humoric (which may not be a word, but it does rhyme with "sophomoric") choice.

That's what makes it obviously parody, because Scalia is one of the few current Supreme Court justices that actually does believe that, unless clearly contrary to the Constitution, the people do have a right to make their own laws. The Onion is parodying Randy Barnett's theory of the Constitution in which the masses are not trusted to make their own laws, except for those laws that implement Barnett's libertarian ideas.

Obviously this is a parody (I used the term "lampoon") of theories that would permit broader judicial review than either Kramer or Justice Scalia would approve. But I still do not see why it is funny to put these words in the mouth of Justice Scalia, who most vocally rejects such theories, while omitting from the parody those justices who are the most sympathetic and putting Justice Kennedy in dissent. Perhaps this is just one of those supremely "ironic" humor things that cannot be explained.

Further Update: Several readers offered a better explanation than Clayton, and one that seems plausible to me. Here is a representative email:

The writer of the article and the editors are not lawyers. Moreover, even if they were I doubt that they would be as familiar with the intricacies of each Justice's jurisprudence (very few in the press seem to be, as evidenced by the nation's major newspapers constant talk about the "liberal" four justices and the "conservative" five justices). To those in mainstream culture who have some familiarity with the Supreme Court, Justice Scalia is seen as the epitomy of the conservative justice. Conservatives at their extreme, to those in the mainstream of the press culture, are fascists. Thus, Scalia is the natural choice for the guy who would write the opinion telling us we're too stupid to rule ourselves.

"Free Weed"--William F. Buckley on Legalizing Marijuana
William F. Buckley and Milton Friedman have long supported legalizing marijuana. Years ago, Buckley publicly announced that he had smoked marijuana on his boat off the coast outside the three mile limit (unlike me, who have never tried it). Now 78 years old and giving up ownership of the National Review, Buckley writes in National Review Online in support of complete legalization and speaks as well of medical cannabis:

But the stodgy inertia most politicians feel is up against a creeping reality. It is that marijuana for medical relief is a movement which is attracting voters who are pretty assertive on the subject. Every state ballot initiative to legalize medical marijuana has been approved, often by wide margins. Of course we have here collisions of federal and state authority. Federal authority technically supervenes state laws, but federal authority in the matter is being challenged on grounds of medical self-government. It simply isn't so that there are substitutes equally efficacious. Richard Brookhiser, the widely respected author and editor, has written on the subject for The New York Observer. He had a bout of cancer and found relief from chemotherapy only in marijuana — which he consumed, and discarded after the affliction was gone.

The court has told federal enforcers that they are not to impose their way between doctors and their patients, and one bill sitting about in Congress would even deny the use of federal funds for prosecuting medical marijuana use. Critics of reform do make a pretty plausible case when they say that whatever is said about using marijuana only for medical relief masks what the advocates are really after, which is legal marijuana for whoever wants it.

That would be different from the situation today. Today we have illegal marijuana for whoever wants it. An estimated 100 million Americans have smoked marijuana at least once, the great majority, abandoning its use after a few highs.

The Court of Appeals of Minnesota confronted an interesting question yesterday: May a trial court require a defendant to hide a cross that he was wearing, so that the jury couldn't see it? (The Minnesota Constitution has been interpreted as mandating the government to accommodate religious practices in many contexts; but even under the U.S. Constitution's current Free Exercise Clause rule, such a requirement may pose problems because it singles out religious symbols for special restriction.) Here's the relevant excerpt from the opinion:

Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate's cross would be "sending a religious connotation to the jury." The district court then told Tate "to tuck [the cross] inside [his] sweater." . . .

Minnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Courts must ask if (a) the objector's belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.

Tate argues that it is clear that the district court's restriction violated his right to the free exercise of religion because (1) he "strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere" and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs. See Joseph v. State, 642 So. 2d 613, 615 (Fla. Dist. Ct. App. 1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant's clothing was based on his religious beliefs and there was no evidence to support trial court's decision to prohibit defendant from wearing the clothing); In re Palmer, 386 A.2d 1112, 1114 (R.I. 1978) (holding that trial court's refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant's beliefs or whether such beliefs precluded the removal of the prayer cap in court).

Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were "captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other's religious beliefs expressed to them." Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross. . . .

The court of appeals concluded that "because the district court did not conduct an inquiry into the substance and sincerity of Tate's beliefs, the district court's order forbidding Tate from openly wearing his cross was error." Presumably this means that if the trial court did conduct such an inquiry, and Tate was found to be sincere in his beliefs, he was entitled to wear the cross. But it's conceivable that the court of appeals is leaving open the possibility that the defendant could still be restricted because of some compelling interest in shielding jurors from religious symbolism. In fact, the court of appeals later characterized the district court's actions as "arguably infring[ing]" Tate's religious freedom, so the "arguably" suggests the question may still be open.

But in any event, the court held (probably correctly), that any such error didn't make Tate's trial unfair, and thus doesn't justify giving him a new trial.